CWP No. 2474 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 2474 of 2009 Date of Decision: 17.08.2010 Smt.Shipra Jindal ...Petitioner Vs. The Union of India & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Rajiv Atma Ram, Sr. Advocate, with Mr.R.Kartikeya, Advocate, for the petitioner. Mr.A.R.Sidhu, Asstt. Solicitor General of India, with Mr.Vijay Kaushik, Advocate, Mr.Kanwalvir Singh Kang, Advocate, for respondents No.2 to 6. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) The petitioner by invoking the writ jurisdiction of this court CWP No. 2474 of 2009 2 under Articles 226 and 227 of the Constitution of India, prays for a writ in the nature of certiorari for quashing the order dated 9.01.2009, Annexure P.13, vide which services of the petitioner were terminated with immediate effect and the advertisement dated 23.01.2009, Annexure P.16, vide which applications were invited for filling up post of the petitioner. Brief facts giving rise to the filing of the writ petition are, that an advertisement was issued in the year 2004 inviting application for recruitment to the post of processing clerk. The petitioner after process of selection was selected and appointed as a processing clerk with the Consulate General of Canada. On 22.08.2005 the petitioner was promoted to the post of Programme Clerk. The petitioner was thereafter given double promotion to the post of level VI post of Case Analyst. In August,2007, Ms. Helen Economo, Consul (Immigration), Consulate General of Canada at Chandigarh joined the respondent consulate. She appreciated the work of the petitioner and gave her certificate of appreciation. The case of the petitioner further was, that behaviour of respondent No.4 showed that she was biased and prejudiced against Indians in general and women in particular. She tried to intimidate the employees in her department by declaring that she had the history of terminating the employees wherever she was posted. She was particularly inimical towards the employees who sought leave. The marriage of the petitioner was to take place in March, 2008 and on coming to know about it respondent No.4 started threatening the CWP No. 2474 of 2009 3 petitioner not to take any leave for the said purpose but as the petitioner refused to cow down she was issued a warning that the petitioner should not have any children as her service was likely to be terminated in case she applied for maternity leave. In June, 2008, respondent No.4 came to know that the petitioner was pregnant. On this, she was called and threatened to get her pregnancy terminated or her service would be terminated. It was on account of this that the petitioner got her pregnancy terminated under the pressure of respondent No.4. On 17.12.2008, the petitioner was suffering from viral infection because of which she could not continue working because her condition deteriorated. On this, respondent No.5 allowed her half day leave. On 17.12.2008 the petitioner slipped from the staircase in her house and injured her back and ankle. She accordingly sent an information to respondent No.5 her Consul (Immigration), that she will not be able to attend the office on 18.12.2008. The petitioner was checked by Dr.Raghav in the Orthopedic OPD in PGIMER, Chandigarh and was advised rest till 27.12.2008. The petitioner accordingly again informed the officers in the Consulate General of Canada at Chandigarh that she would submit her medical documents later. The petitioner was taken to Delhi by her husband where she was examined by the doctors in Delhi. The husband of the petitioner took her to Singapore on 19.12.2008 as because of injury she could not be left alone. The petitioner accordingly informed the respondents that she was in CWP No. 2474 of 2009 4 Singapore. The petitioner alleges that she took 5 days' leave in total. On 29.12.2008 the petitioner joined back and submitted her medical documents. She further admitted that she, in fact, was at Singapore and not at Delhi. Respondent No.5 informed the petitioner that he would report the incident to respondent No.4 who would take final decision on it after returning from her vacation from Thailand. On 8.1.2009, respondent No.4 returned from vacation and issued a communication to the petitioner informing her that there would be a meeting with respondent No.3 on 9.1.2009. A brief summary of facts was also given but it mentioned no Rule/Law. On 9.1.2009 the petitioner prepared a brief response to the communication. The response was not exhaustive as the petitioner did not have the copy of rules and regulations applicable and was also not in know of exact charges against her. In the meeting with respondent No.3, respondents No.4 & 5 were also present, where she was informed that decision would be taken and informed to her. On 9.1.2009 the petitioner was called by respondent No.4, wherein a letter was handed over to her by respondent No.3 informing her, that it was decided to terminate her services, and that she would have a right under rules applicable to grieve (appeal) the decision within a period of ten days. The petitioner was also informed by respondent No.4, that in case she had followed her wishes, her termination could have been prevented. On 12.1.2009 due to mental trauma legal representatives of the petitioner sent a communication to respondent No.3 Consulate General CWP No. 2474 of 2009 5 of Canada at Chandigarh to supply copy of rules and regulations applicable to the petitioner and requested to extend the time of 10 days for filing the appeal but she received no response to the said letter. Thereafter an advertisement Annexure P.16 was issued inviting fresh application. Impugned order Annexure P.13 reads as under:- “ Government of Canada Gouvernement due Canada Consulate General of Canada Consulat general du Canada January 9,2009 Helen Economo Consul General Chandigarh,India Shipra Jindal PROTECTED A C/o Canadian Consulate Chandigarh, India. DearMs.Jindal By the authority vested in me by the Deputy Minister of Foreign Affairs of Canada, I am informing you that your employment with the Consulate General of Canada in Chandigarh, India is terminated effective immediately. This decision is taken following the conclusions of an administrative investigation the Consulate undertook in connection with your absence from the office between December 17th,2008 and December 28, 2008.The administrative investigation concluded that you misrepresented facts of the absence and consequently contravened the Values and Ethics Codes. As per your office letters dated April 13, 2004 and July 9,2007 (promotion to LE6) Canadian Government Regulations require that all employees comply with the Government of Canada's Values and Ethics Code. As part of the Code, you committed a breach of trust in the repeated misrepresentation of facts that you provided concerning your absence from work between December 17th and December 28, 2008. These actions constitute a serious breach of trust in regards to CWP No. 2474 of 2009 6 the Standards of Conduct and therefore immediately warrant discharge as per Section 11.3.3, Part I of the Locally Engaged handbook. Consequently, you will be paid any payment that you are entitled to under the Locally-Engaged Staff Terms and Conditions Regulations less any amounts owing to the Mission. Any monies owing to you will be made available as soon as possible. You are asked to return your identification card and clear out your office. You will not be permitted to return to the premises. Should you deem this action unwarranted, you may in accordance with Section 5.3.2 of the Locally-Engaged Staff Terms and Conditions Regulations grieve this decision. If you decide to grieve, you must do so within ten (10) working days for submitting a written statement describing the facts of the grievance and the corrective action you request. Sincerely, Sd/- Helen Economo Consul General.” The petitioner challenges the termination order on the following grounds: i) That the respondents in terminating the services of the petitioner, violated conventions and treaties on protection of women's rights which have been signed by their government as well as the Government of India; ii) That the respondents have used the policy of hire and fire in terminating the services of the petitioner. It is the case of the petitioner that the respondents did not follow the procedure laid down, either by laws of India or laws of Canada, as the petitioner was not given proper list of charges against CWP No. 2474 of 2009 7 her nor she was given copy of rules applicable to the employees charged with an offence and/or misconduct. The documents submitted by the petitioner were not even verified by the respondents to check their authenticity. Action was, thus, claimed to be in violation of numerous judgments of Hon'ble Supreme Court of India, being in violation of principles of natural justice. iii) That the petitioner was not guilty of any misconduct or breach of trust, as genuine medical certificates were produced. The petitioner had medical leave to her credit and the leave was applied on the basis of genuine papers and the grounds. The petitioner claimed that she was subjected to racial and gender discrimination. iv) That the petitioner has been denied the right of filling an appeal, against her termination as provided by law of Canada, denying her the relevant documents, nor the date of filing appeal was extended, but instead advertisement was issued for filling the post of the petitioner. v) That the punishment awarded to the petitioner was disproportionate to the charges leveled against the petitioner. vi) That respondent No.4 was inimical to the interest of the petitioner and was biased against her because of the racial/gender discrimination and also for the reason, that she has refused to follow the unjustified directions of the CWP No. 2474 of 2009 8 respondents. vii) That the respondents conducted the inquiry behind the back of the petitioner, and did not supply the copy of inquiry report, which amounts to violation of principles of natural justice. The order could not be sustained in view of the law laid down by Hon'ble Supreme Court in the case of Union of India Vs. Mohd.Ramzan (1991 (1) SLR 159. viii) That the respondents violated Articles 14 and 16 of the Constitution of India, in terminating the services of the petitioner. Order was, thus, said to be arbitrary as the charges against the petitioner were frivolous, thus, violative of Article 14 of the Constitution of India. On notice a written statement was filed on behalf of respondents No.2 to 6 through respondent No.4, i.e. the person authorized to file written statement, on their behalf. Preliminary objection was taken that the writ petition was not maintainable, as no writ under Articles 226/227 of the Constitution of India is competent against foreign government and/or its diplomatic and consular missions in India. The stand of the respondents was, that Government of Canada, respondent No.2 , the Consulate General of Canada, respondent No.3, their senior consular official posted in India, respondents No.4 to 6, are not under the control of State (Government of India), and do not fall within the CWP No. 2474 of 2009 9 definition of “State” under Article 12 of the Constitution of India. The stand of the respondents further is, that in view of the judgment of Hon'ble Supreme Court in the case of Balco Employees Union Vs. Adnani Exports Ltd., AIR 2002 SC 126, writ under Article 226 of the Constitution of India is competent only against (a) the State (Government of India), (b) Authority, (c) a statutory body, (d) an instrumentality or agency of the State, (e) a private body run substantially on State funding, (f) a private body discharging public duty or positive duty of public nature, (g) a person or a body under liability to discharge any function under the statute, to compel it to perform such a statutory function. The writ petition, therefore, was not competent against the Government of Canada or Consulate General of Canada located at Chandigarh or its diplomats/consular officials as they were neither any instrumentality nor agency of the Government of India nor under the control of Government of India or funded by the Government of India. Respondents No.2 to 6 are foreign State, and the functioning of the office of Consulate General of Canada at Chandigarh, is governed by the laws of Canada. Office of Consulate General of Canada at Chandigarh is by virtue of agreement between the two countries i.e. India and Canada. It was also the stand of the respondents, that Government of Canada or its Consulate Office at Chandigarh is neither a court nor a Tribunal, therefore, were not under the supervisory control of this court, under Article 227 of the Constitution of India. Preliminary objection was also raised, that the Union of India CWP No. 2474 of 2009 10 and Government of Canada are signatories to the Vienna Convention on Consular Relations, 1963 (for short Vienna Convention, 1963) and as per Article 43 of the Vienna Convention, 1963 consular officers are not amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. Therefore, issuance of writ by this court would be in violation of Vienna Convention, 1963. The stand of the respondents was, that the petitioner had a remedy of appeal, which she failed to avail within the period stipulated therein. Plea was also raised that remedy with the petitioner, if any, was under sections 86 of the Code of Civil Procedure with the permission of the Government of India, however, Union of India in reply stated that there was no ground to grant such permission. The respondents have also placed reliance on the judgment of Hon'ble Supreme Court in the case of Veb Deutfracht Seereederei Rostock (D.S.R. Lines), Dept, of the German Democratic Republic Vs. New Central Jute Mills Co. Ltd. (1994) 1 SCC 282, wherein it was laid down that the principle of international law is, that every sovereign State respects the independence of every other foreign State. The object of section 86 of the Code of Civil Procedure, is to give effect to the principles of international law, that no foreign State/corporation can be sued in India without sanction of the authority. The immunity extends to any undertaking or corporation of a foreign State, as such a civil suit cannot be instituted against such CWP No. 2474 of 2009 11 undertaking or corporation of the foreign State without permission of the Central Government. It was pleaded that the writ petition as framed was not competent. Averments made on merit were denied. Article 43 of the Vienna Convention, 1963 reads as under:- “ Article 43 Immunity from jurisdiction 1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. 2. The provisions of paragraph 1 of this article shall not, however,apply in respect of a civil action either: (a) arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft.” Mr.Rajiv Atma Ram, learned senior counsel appearing on behalf of the petitioner vehemently contended, that the writ petition is competent: Firstly for the reason, that the petitioner besides impleading CWP No. 2474 of 2009 12 respondents No.2 to 6 has also sought a writ in the nature of mandamus directing the Union of India to make rules and regulations to govern the services of Indian employees working in the consulate of the foreign countries; Secondly, that under Article 226 of the Constitution of India word 'any Government' would also include the Government of Canada. The contention was that the preliminary objection raised by the respondents with regard to the maintainability of the writ petition deserved to be rejected. It was also the contention of the learned senior counsel for the petitioner, that the conduct of the respondents in not supplying the material to the petitioner to file an appeal, would lead to a conclusion that the petitioner has been denied right of appeal. Therefore, this court in exercise of jurisdiction under Articles 226/227 of the Constitution of India, can issue a writ of certiorari quashing the impugned order of her termination, being in violation of the law laid down by the Hon'ble Supreme Court of India, on principles of natural justice, and further the order being in violation of Articles 14 & 16 of the Constitution of India. Finally, the contention of the learned senior counsel for the petitioner was, that Parliament enacted an Act called the Diplomatic Relations Vienna Convention Act, 1972, wherein provisions of Vienna Convention on Diplomatic Relations 1961, have been adopted to give it the force of law. In the Act Article 43 on which reliance was placed is not CWP No. 2474 of 2009 13 included. The respondents, therefore, can take no benefit of Article 43 of Veinna Convention. The respondents, on the other hand, raised objection about the maintainability of the writ petition, on the ground that even if Diplomatic Relations Vienna Convention Act, 1972, did not incorporate Article 43, still in view of Articles 22 and 31 of the Vienna Convention, 1963, this writ would not be competent. Articles 22 and 31 of the Vienna Convention read as under:- “ Article 22 Nationality of consular officers 1. Consular officers should, in principle,have the nationality of the sending State. 2. Consular officers may not be appointed from among persons having the nationality of the receiving Sate except with the express consent of that State which may be withdrawn at any time. 3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State. Article 31 Inviolability of the consular premises 1. Consular premises shall be inviolable to the extent provided in this article. CWP No. 2474 of 2009 14 2. The authorities of the receiving Sate shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action. 3. Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity. 4. The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purpose, all possible steps shall be taken to avoid impeding the performances of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.” On consideration of matter, I find no force in this writ petition. A pre-requisite for exercise of jurisdiction under Article 226 of the Constitution of India is the existence of fundamental right or legal right CWP No. 2474 of 2009 15 which is alleged to have been violated. In G.Bassi Reddy Vs. International Crops Research Institute and Anr. (2003) 4 SCC 225, Hon'ble Supreme Court held, that writ under Article 226 of the Constitution of India lies only when the petitioner establishes that his/her fundamental right or some other right has been infringed by the State or authority under Article 12 of the Constitution of India. The petitioner in the present case alleged violation of her rights under Articles 14 and 16 of the Constitution of India, and violation of principles of natural justice. In the opinion of this court, none of these rights exist in the facts of the present case. Article 14 of the Constitution of India lays down that the State shall not deny to any person equality before the law or equal protection of laws within the territory of India, whereas Article 16 (1) provides that there shall be equality of opportunity for all citizens in the matters relating to employment or appointment of any officer under the State. It is settled law that fundamental rights under Articles 14 and 16 of the Constitution of India are available to the persons against State or authority under Article 12 of the Constitution of India. In Pardeep Kumar Biswas Vs. Indian Institute of Chemical Biology & Ors. (2002) 5 Supreme Court Cases 111, Hon'ble Supreme Court held as under: “8. But before considering the decisions it must be emphasized that the significance of Article 12 lies in the fact CWP No. 2474 of 2009 16 that it occurs in Part III of the Constitution which deals with fundamental rights. The various articles in Part III have placed responsibilities and obligations on the “State” vis-a-vis the individual to ensure constitutional protection of the individual's rights against the State, including the right to equality under Article 14 and equality of opportunity in matters of public employment under Article 16 and most importantly, the right to enforce all or any of these fundamental rights against the “State” as defined in Article 12 either under Article 32 by this Court or under Article 226 by the High Court by issuance of writs or direction or orders.” The petitioner cannot claim any right under Articles 14 or 16 of the Constitution of India against the Canadian Consulate in Chandigarh as it cannot be said to be the “State” under test laid down by Hon'ble Supreme Court in Pardeep Kumar Biswas Vs. Indian Institute of Chemical Biology & Ors. (supra), nor can foreign State be said to be bound by Articles 14 and 16 of the Constitution. In support of the contention that there is violation of principles of natural justice the petitioner alleged that non-furnishing of inquiry report etc. has violated her right, in view of law laid down by Hon'ble Supreme Court of India in Managing Director, ECIL, Hyderabad & Ors. Vs. B.Karunakar & Ors. (1993) 4 SCC 727, and the judgment of Hon'ble Supreme Court in the case of Union of India Vs. Mohd.Ramzan (supra), CWP No. 2474 of 2009 17 In the opinion of this court the judgments relied upon by the petitioner are not at all relevant to the case. Judgment of Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B.Karunakar & Ors. (supra), was delivered in the context of first proviso to Article 311 (2) of the Constitution of India. Articles 311 (1)and 311 (2) of the Constitution of India, which are applicable only in respect of persons employed in civil capacities under the “Union” or the “State”. As already observed above, the petitioner, on the other hand, was employed in Canadian Consulate at Chandigarh, under the Government of Canada, therefore, principles of natural justice enshrined under Article 311 (2) of the Constitution of India are not applicable to the petitioner. Her service conditions were governed by contract of service and laws of Canada. In the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B.Karunakar & Ors. (supra), Hon'ble Supreme Court held that the requirement of furnishing the copy of inquiry report was applicable to the employees in all establishments whether Government or non-Government, public or private. However, these words cannot bring the consulate of foreign countries within the meaning of term establishment in the sense it was used, in the case of Managing Director, ECIL,