DELEGATION OF THE EUROPEAN UNION TO SRI LANKA AND THE MALDIVES

DELEGATION OF THE EUROPEAN UNION TO SRI LANKA AND THE MALDIVES

Vs.

PRESIDENT OF THE LABOUR TRIBUNAL AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA,J.
CA/WRIT/229/2015

Writ of certiorari-Diplomatic Privileges Act, No; 9 of 1996, sections 2(3), 4-Diplomatic immunity-Waiver of diplomatic immunity-Prerequisites to go before local courts

The petitioner employer filed this application seeking to quash by way of writ of certiorari the order made by the 1st respondent Labour Tribunal

whereby the petitioner was directed to pay compensation to the 2nd respondent employee on the basis that the termination of the services of the latter was unjustifiable, and to prohibit the 1st and the 2nd respondents by way of writ of prohibition from taking further steps on the said order. The 1st respondent made the impugned order predominantly on the basis that the petitioner has waived off the diplomatic immunity in terms of section 2(3) of the Act.

Held:

1. The waiver cannot be presumed. The party alleging waiver of diplomatic immunity shall prove that the other party with full knowledge of his right abandoned it either expressly or by conduct inconsistent with the immunity he is entitled to claim.

2. In terms of Article 11 of the Letter of Appointment, the employee has two hurdles to surmount before taking the matter to the local court. Firstly, he shall, after the internal disciplinary procedure is concluded, follow the internal appeal procedure and, secondly, he shall refer the dispute for arbitration. This has not been done.

3. The petitioner enjoys diplomatic immunity in terms of section 4 of the Diplomatic Privileges Act, No.9 of 1996.

Cases referred to:

1. The British High Commission v. Ricardo Wilhelm Michael Jansen (SC/APPEAL/99/2012, SC Minutes of 10.07.2014)
2. Elgitread Lanka (Pvt) Ltd v. Bjno Tyres (Pvt) Ltd (SC/ APPEAL/106/08, SC Minutes of 27.10.2010)

APPLICATION for Writs of Certiorari and Prohibition.

Geoffrey Alagaratnam, P.C., with Suren Fernando for the Petitioner.

Sobhitha Rajakaruna, D.S.G., for the 1st and 3rd Respondents.

Athula Perera for the 2nd Respondent.

cur. adv. vult.

November 5, 2019

SAMAYAWARDHENA, J.

The petitioner filed this application seeking (a) to quash by way of writ of certiorari the interim order and the final order made by the 1st respondent marked P8 and P9 whereby the petitioner employer was directed to pay compensation to the 2nd respondent employee on the basis that the termination of services of the latter was unjustifiable; and (b) to prohibit the 1st and the 2nd respondents by way of writ of prohibition from further steps being taken on the said orders.

The petitioner refused to participate in the Labour Tribunal proceedings initiated by the 2nd respondent citing diplomatic immunity.

The learned Deputy Solicitor General appearing for the 1st and 3rd respondents concedes that the petitioner enjoys diplomatic immunity in terms of the provisions of the Diplomatic Privileges Act, No. 9 of 1996, in particular, section 4 thereof. The 1st respondent has also either accepted or not contested it in the impugned orders.

However, the 1st respondent has made those impugned orders predominantly on the basis that the petitioner has waived the immunity.

The 1st respondent has stated that the petitioner had earlier settled two similar cases, apparently before another division of that Tribunal. It appears that the 1st respondent has considered it a general waiver of the diplomatic immunity by the petitioner.

Settlement of two cases in good faith without taking up high-flown technical objections cannot be considered submission to jurisdiction in all future cases. In the present case there is no submission to jurisdiction. Each case shall be dealt with separately.

As the learned President's Counsel for the petitioner submits, there is no "universal waiver of diplomatic immunity".

The learned counsel for t

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