(Execution of Judgment No. 90)

Judgment No. 94

THE ADMINISTRATIVE TRIBUNAL,

Considering the application of the Food and Agriculture Organisation of the United Nations of 21 December 1965, the submissions of Ram Prasad of 4 March 1966, and the Organisation's further observations of 7 April 1966;

Considering this Tribunal's judgment No. 90 of 6 November 1965;

Considering Article VI, paragraph 1, second clause, and Article VIII of the Statute of the Tribunal;

Having examined the documents in the dossier, oral proceedings having neither been requested by the parties nor ordered by the Tribunal;

Considering that the material facts of the case are as follows:

A. By Judgment No. 90, of 6 November 1965, the Administrative Tribunal quashed the decision of the Director-General of the Food and Agriculture Organisation of the United Nations to terminate the appointment of Ram Prasad for unsatisfactory services.

B. On 21 December 1965, the Food and Agriculture Organisation made an application to the Tribunal in which it was submitted that, as no oral proceedings were to be held in the original case, and as the Organisation therefore had had no opportunity to make oral submission concerning the possibility or advisability of reinstating the complainant, should the Tribunal find for him, the Organisation assumed that the Tribunal would, ex officio, make provision, in its judgment, for alternative relief by way of indemnity, should the Organisation find it impossible to give full effect to Judgment No. 90 by reinstating the complainant, and therefore made no submissions in this connection. However, after a full review of the position, following Judgment No. 90, the Organisation found that, having regard to the fact, further particularised in the observations of 7 April 1966, that there no longer existed, within the limited establishment of their New Delhi Sub-Regional Office, any vacant post in the grade formerly held by complainant, it was impossible to reinstate Ram Prasad. Accordingly, the Organisation prayed the Tribunal, by reference to Article VIII of its Statute, to decide that, in lieu of reinstatement, Ram Prasad should be awarded compensation for the prejudice suffered as a result of the Organisation's decision to terminate his appointment, and submitted particulars concerning Ram Prasad's salary and allowances while in the service of FAO.

C. When the application of FAO was communicated to him for observations, Ran Prasad submitted that, in his complaint, he had prayed for the quashing of the decision complained of, and for reinstatement; that the Organisation was bound to take into account this prayer for relief, and that it was its responsibility to request the Tribunal, before judgment was given, to take into consideration the fact that no vacancy existed and to rely on Article VIII of the Statute of the Tribunal to request that, in case the complaint were held to be well founded, alternative relief be granted by way of indemnity. In conclusion, Ram Prasad submitted that the Organisation's application was in violation of Article VI of the Statute of the Tribunal and that the Tribunal should dismiss it and order FAO to honour Judgment No. 90.

CONSIDERATIONS:

1. Under Article VIII of the Statute of the Tribunal: "In cases falling under Article II, the Tribunal, if satisfied that the complaint was well founded, shall order the rescinding of the decision impugned or the performance of the obligation relied upon. If such rescinding of a decision or execution of an obligation is not possible or advisable, the Tribunal shall award the complainant compensation for the injury caused to him."

2. It follows from this provision that where the Tribunal is satisfied that a complaint by an official praying for the quashing of an administrative decision is well founded, the Tribunal can either quash the decision or, if it considers that the reinstatement of the official concerned, which is the necessary consequence of the quashing of the decision, is not possible or advisable, award compensation, the choice between these alternatives being made either in the light of written or oral observations of the parties or of its own motion.

3. By Judgment No. 90 of 6 November 1965, the Tribunal quashed the decision of 18 March 1965 dismissing Mr. Prasad, thereby finding that his reinstatement was possible and not inadvisable; this judgment, which disposes of the issues raised is final, and the Organisation cannot reopen these issues.

4. Moreover, Mr. Prasad's reinstatement was possible at the date on which the judgment was given, since, according to the Organisation's own admission, the period of appointment of his successor would expire on 31 December 1965, and it will again become possible on 31 December 1966 upon the expiry of that successor's new period of appointment, execution of the judgment being a valid reason for non-renewal of his appointment. On the other hand, having regard to the nature of the employment in question, the Organisation was not obliged, in any event, to reinstate the complainant in the identical post he had occupied, but might have offered him any other substantially equivalent post; in particular, the fact that the G.2. level post held by Mr. Prasad had been converted in the interests of the service to a G.1 post would not have prevented an offer of this post to Mr. Prasad, the Organisation being entitled, in the event of his refusing it, to draw the appropriate conclusions.

5. Consequently, the Organisation must comply with the judgment given and pronounce the reinstatement of Mr. Prasad as from the date at which his employment was illegally terminated, and this implies that, in addition to the payment of arrears of salary, the Organisation must offer him either the same post or one substantially equivalent.

DECISION:

For the above reasons,

The application of the Food and Agriculture Organisation of the United Nations is dismissed.

In witness of this judgment, delivered in public sitting in Geneva on 11 October 1966 by Mr. Maxime Letourneur, President, Mr. Andr¿risel, Vice-President, and the Right Honourable Lord Devlin, P.C., Judge, the aforementioned have hereunto attached their signatures to these presents, as well as myself, Lemoine, Registrar of the Tribunal.

(Signed)

M. Letourneur
Andr¿risel
Devlin
Jacques Lemoine