Dismissed

K.Thankamani v. Union of India

Kerala HC14 Dec 2022WA/622/2016

Case brief

AI extract

What is this about?

In this writ appeal, the Kerala High Court rejected the appellant's challenge to the earlier dismissal of his petition seeking compensation from the Embassy of India for non-payment of salary and termination by a private employer in Saudi Arabia. The court found no basis for interference due to the absence of relevant treaties. The appeal was dismissed.

What did the court decide?

Writ appeal dismissed; no compensation or direction for salary arrears granted.

K.Thankamani Vs Union of India — Service and Employment | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY,THE 14^TH DAY OF DECEMBER 2022/23RD AGRAHAYANA, 1944

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WA NO. 622 OF 2016

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AGAINST THE JUDGMENT IN W.P.(C.)NO. 27814/2004 DATED

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05.11.2013

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APPELLANT/PETITIONER:

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K.THANKAMANI, AGED 74 YEARS S/O.KUNJUKRISHNAN NADAR, VARUVILAKAM PUTHEN VEEDU, KONNANNOORKKANAM, THIRUVANANTHAPURAM-695504.

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BY ADV. SRI.M.R.SASITH

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RESPONDENTS/RESPONDENTS:

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1 UNION OF INDIA REP. BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, DIPLOMATIC BAG CENTRAL SECRETARIAT SOUTH BLOCK NEW DELHI.

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2 THE SECRETARY (LABOUR)/LABOUR ATTACHE EMBASSY OF INDIA IN SAUDI ARABIA POST BOX NO.943847, RIYADH 111693, SAUDI ARABIA.

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3 GENERAL MANAGER ABDULLA AM, A-I KOHDARI SONS COMPANY POST BOX NO.3589, AL-KHOBAR-31952, SAUDI ARABIA.

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W.A. No. 622/2016

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4 SECRETARY TO GOVERNMENT NORKA, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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R1 & R2 BY S. MANU, DEPUTY SOLICITOR GENERAL OF INDIA

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE

FOLLOWING:

W.A. No. 622/2016

JUDGMENT

S. Manikumar, C.J.

Before the writ court, the petitioner has sought for the

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following reliefs:-

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“i) issue a writ of mandamus directing the 1^st respondent to pay an amount of Rs. 6,25,000/- as compensation for the loss and damages caused to the petitioner on account of negligence, dereliction of duty and denial of employment on the part of the 2^nd respondent in redressing the grievance of the petitioner under Public Law Remedy;

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ii) issue a writ of mandamus directing the 2^nd and 4^th respondents to proceed against 3^rd respondent to get the arrears of salary, compensation denial of employment caused to the petitioner, insured amount and other benefits available under Saudi Workmen and Labour Laws within a time limit;”

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Short facts leading to the filing of this writ petition

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are as under:-

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2.1 Petitioner approached 1^st and 2^nd respondents on

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several occasions to get his arrears of salary, compensation for denial of employment caused to the petitioner, insured

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W.A. No. 622/2016

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amount and other benefits available to him from the 3^rd respondent. In spite of the direction of this Court as per Ext.P5, the respondents 1 and 2 refused to redress the grievance of the petitioner. Since the Union of India is vicariously liable and responsible for the acts of its servants, the 1^st respondent is responsible for the acts of its servants, the 1^st respondent is responsible for the acts of the 2^nd respondent. Hence the petitioner is entitled for compensation from the 1^st respondent. Petitioner's request was not considered by the 1^st respondent. Petitioner's request was not considered by the 1^st respondent. As per Articles 294(b) and 300(i) of Constitution of India, the petitioner can claim compensation from the Government of India. Hence, the writ petition is filed.

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Addressing to the rival submissions and taking note of the counter affidavit filed by respondents 1 and 2, writ court vide judgment dated 05.11.2013 in W.P.(C.) No. 27814 of 2004, dismissed the writ petition as hereunder:-

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W.A. No. 622/2016

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“3. Respondents 1 and 2 filed a detailed counter affidavit disputing the allegations. It is pointed out that it is not within the powers of respondents 1 and 2 to extract results through any coercive means in labour related dispute between a private company in a foreign country and its employees. It is further pointed out that the 2^nd respondent forwarded the matter to the Ministry of Foreign Affairs, Kingdom of Saudi Arabia and properly took follow-up actions for getting a positive result.

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4. The petition is silent as to why the petitioner has not taken up the matter as per the Labour Laws of the Kingdom of Saudi Arabia. As rightly pointed out by the learned Standing Counsel for the Central Government, the Embassy of India in the Kingdom of Saudi Arabia, being a diplomatic mission, has to function within certain norms and procedures. The Embassy has limitations to intervene in a labour related dispute between an employer in a foreign country and its employee, who has taken up job by a private subcontract, to which the Government of India is not a party. As rightly pointed out by the learned Standing Counsel for the Central Government, the failure of the petitioner to take up the issue with his Sponsor/Employer at the right time is the real reason for the delay in settling the matter. The petitioner could have approached the local Labour Court in case justice has been denied to him.

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5. In the counter filed by respondents 1 and 2, it is specifically pointed out that the petitioner could have taken

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W.A. No. 622/2016

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any or more of the following action if he has any genuine grievance.

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“a) To make a complaint before his employers/sponsors regarding non-payment of salary or any part of the same.

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b) to petition the Embassy regarding non payment of his salary and termination of job before he left Saudi Arabia so that Embassy could contact the authorities while he was present in Saudi Arabia.

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c) to approach the Saudi Labour Office of Labour Court.

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d) to make a complaint before Saudi Arabian Immigration Authorities at exit point regarding forceful repatriation, if any.”

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This Court finds force in the contentions raised by the 1^st and 2^nd respondents. As the grievances of the petitioner could not have been taken by the Embassy under the provisions of any bilateral labour contract, mutual legal assistance treaty or extradition treaty, the claims of the petitioner now raised against the 1^st and 2^nd respondents are bound to fail. Therefore, the writ petition is dismissed.”

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4. Being aggrieved, instant writ appeal is filed.

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Though Adv.Parvathy Krishna, learned counsel for

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the appellant made submissions on the grounds raised in the appeal, we do not find any error in the impugned judgment warranting interference for the reason that the writ court has considered the action that should have been taken by the

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W.A. No. 622/2016

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appellant and also of the fact that there is no bilateral labour contract, mutual legal assistance treaty, obligating respondents 1 and 2, to address the grievance of the appellant.

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For the reasons stated above, the writ appeal is dismissed.

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S. MANIKUMAR CHIEF JUSTICE

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SHAJI P. CHALY JUDGE

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DCS/14.12.2022

K.Thankamani v. Union of India

Case brief

What is this about?

What did the court decide?

K.Thankamani v. Union of India

Case brief

What is this about?

What did the court decide?

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