Union of India v. Syed Ashraf Hasnain Rizvi

SANJIV KHANNA, J.

JULY 11, 2011 VKR

Page 1 * 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 Page 2 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 Page 3 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. Page 4 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 inappropria