UNO Not A 'State' Under Article 12 Of The Constitution: Delhi HC

Bench of Justice Suresh Kumar Kait while dismissing the petition referred to the opinion of court in M/s. Hindustan Engineering & General Mazdoor Union (Regd) & Ors. Vs. Union of India & Ors in which court had held that "By no stretch of imagination an organisation of United Nations which is an international body be treated as "instrumentality" and or an "agency" of the Government."

Background

Petitioner, who was an employee with United Nations Organization was charged with misconduct and suspended from duty without pay for 3 months. The petitioner indicted before the US Federal Court. The immunity of the petitioner was waived on the request of United States Attorney without waiting for the completion of due process under Staff regulation and the petitioner was arrested by the FBI. In November of 2006, the petitioner was granted bail. On 29.11.2006, the suspension of the petitioner was extended for 3 months without pay. In 2007, the trial of the petitioner commenced before the US Federal Court and the said court convicted the petitioner in the trial and sentenced him to 97 months of imprisonment and 2 years of mandatory probation. Aggrieved by the same, petitioner filed appeal which was dismissed by the Second Circuit Court. After that review petition was dismissed too in 2012. In 2016, petitioner filed writ petition before the Supreme Court of United States and same was dismissed in 2017.

In November 2018, the petitioner wrote a letter, to Ministry of External Affairs, New Delhi, seeking grant of permission to initiate legal action against respondents' under Section 86 of Civil Procedure Code, 1908. In its reply, the Ministry stated that the consent of Government of India is not required to initiate a legal suit against the respondent as it is not a foreign state and is only an Internal Organization of UNO. It also said that respondent and its officials enjoy immunity under the United Nations (Privileges and Immunities) Act, 1947.

Contentions

Counsel for petitioner argued, amongst other arguments, that the Latin maxim Ubi jus ibi remedium which means that if there is a right, then there must necessarily be a remedy attached to it is a settled law that no one should be left remediless and the petitioner has exhausted all his remedies and has made all possible efforts to invoke the prescribed provisions for appeal on due process. And that was the reason of his petition before the court as the last resort for direction to respondents' for their failure to follow due process of law in petitioner's case. He also argued that Section 2 of Article II of the Schedule of the Act, 1947 which gives blanket immunity to respondent no.2 to waive its immunity is something which makes respondent no.2 a judge in its own cause and is, therefore, against the basic tenets of justice delivery system.

He further submitted that the petitioner is not seeking any relief for which the respondent no. 2 has to invoke the immunity granted to it under the Act, 1947. Rather the petitioner is seeking to invoke the writ jurisdiction of this Court for the purpose of non-adherence of the due process (Rule 110.4 of the Staff rules (ST/SGB/2002/1) which the respondent nos.2 and 3 were bound to follow in order to ensure free and fair disciplinary process of the petitioner who was a serving officer with respondent no.2.

On the other hand counsel for respondents' submitted before the court that as per Section 2, Article II of the United Nations (Privileges & Immunities) Act, 1947, UNO has immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.

In light of above contentions, court said that the immunity granted is all comprehensive and applicability of any national law is subject to the waiver of the immunity by respondent. As respondent has not waived the said immunity, the clause relating to the observance of national laws will be of no help to the petitioner. Once this is the position in law, other arguments advanced by the petitioner which are founded on the premise that respondent is under an obligation to obey the laws of India, also lose their force.

Petitioner was represented by Advocate R. S. Suri and respondent by Advocate Aunrag Ahluwalia in the case.