2 days ago
Madras High Court stays order directing Sri Lankan Deputy High Commission to reinstate former employee
A Division Bench of the Madras High Court has stayed the operation of an order passed by a single judge directing the Sri Lankan Deputy High Commission in Chennai, to reinstate a former employee with back wages. The Bench has also decided to examine in detail as to whether diplomatic missions would fall under the definition of the term 'industry' under the Industrial Disputes Act of 1947.
The Bench comprising Justices R. Subramanian and K. Surender granted the interim stay after the Deputy High Commission preferred a writ appeal, through its counsel G. Kalyan Jhabak, and contended that the single judge had overlooked the proposition that an Embassy or High Commission could not be termed as an 'industry' as it had been defined under Section 2(j) of the I.D. Act.
The orders had been passed on a writ petition filed by T. Senthilkumari, who had served as Consular Assistant at the Deputy High Commission of Sri Lanka in Chennai between 2008 and 2018.
The Deputy High Court Commission also argued that there was no master-servant relationship between it and the writ petitioner who had sought reinstatement in service and hence the question of reinstatement would not arise at all. Claiming that the petitioner was not terminated at all, the appellant stated that she had worked only in a temporary post and her contractual service had come to an end on December 31, 2018.
On the other hand, the single judge, in his February 12 order, had held that foreign diplomatic missions in India could not claim any exemption from following the labour and social security laws of the country, at least with respect to Indians employed in their High Commissions and Consulates here.
He stated that the Parliament had enacted the Diplomatic Relations (Vienna Convention) Act, 1972, to give a force of law to a convention adopted by India at the United Nations Conference on Diplomatic Intercourse and Immunities held in Vienna on April 14, 1961. Article 33 of the Convention clearly states that only foreign nationals serving in a diplomatic mission would be exempt from the social security laws of the receiving State.
'Therefore, the exemption provided for in the Article is not applicable to the nationals of the receiving State... In respect of such employees to whom the exemption provided in the Article does not apply, the diplomatic agents shall observe obligations which the social security provisions of the receiving State impose upon employers. In such view of the matter, no immunity can be claimed by the management,' the judge had said.
He had further held that Indians serving in foreign diplomatic missions here need not obtain the Centre's permission, under Section 86 of the Code of Civil Procedure, before approaching an industrial tribunal against their employers. Relying upon a 1963 Supreme Court verdict, he had said, industrial tribunals could not be deemed to be a court for the purpose of obtaining the Centre's express permission before suing a diplomatic mission.
