The necessity of a speaking order with reasons and compliance with principles of natural justice in decisions under Section 86 CPC.

VALMIKI J. MEHTA, J. (ORAL)

1. The petitioner was appointed as an English Typist in the Embassy of Iran, New Delhi. The last post held by him was Secretary in the Science and Education on permanent basis.

2. On account of his termination from services, and which termination the petitioner contended to be illegal, petitioner after obtaining permission under Section 86 of Code of Civil Procedure, 1908 (CPC) had instituted a civil suit against the Embassy of Iran. This civil suit was decreed for an amount Rs.7,89,600/- alongwith interest at 10% per annum and other related reliefs.

3. When the petitioner thereafter approached the Union of India under Section 86 CPC for permission to execute the decree, that permission was denied. Thereupon, the petitioner approached this Court and filed W.P.(C) No. 3625/2008. A learned Single Judge of this Court found the refusal of permission bad in law, and therefore, directed the Union of India to give permission. Union of India preferred an appeal being L.P.A. No. 489/2010, which was decided on 11.7.2011. The writ petition was only allowed to the limited extent whereby the sanction which was asked for execution of the money decree instead of being granted by the Court was effectively directed to be granted by the appropriate authority under Section 86 CPC. Since, the observations of the Division Bench in this regard are relevant, it would be necessary to reproduce some of the paras of the judgment, and which read as under:-

“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 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 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 Judg