-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.9375 of 2007 Shri Shakeel Ahmed Abdur Rehman Adhikari ..Petitioner vs. 1. Union of India and ors. ..Respondents Shri A.K.Abhyankar, Sr.Advocate i/b Shri S.M.Sabrad for petitioner. Shri R.B.Raghuvanshi, Addl.Solicitor General with Smt.Neeta Masurkar, A.G.P. for respondents CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 8th February, 2008 8th February, 2008 8th February, 2008 P.C. P.C. P.C. 1. This Writ Petition under Articles 226 and 227 of the Constitution of India is directed against the order passed by the Protector General of Emigrants and Registering Authority suspending the certificate which has been issued to the petitioner on 8th January, 2002 under the Emigration Act, 1983. This order has been confirmed by the Appellate Authority on 10th October, 2007. 2. It is undisputed before me that the petitioner was issued a registration certificate on 8th January, 2002 under the aforesaid Act permitting him to recruit workers for overseas -2- employment during the validity of the certificate. The certificate is valid upto 7th November, 2008. 3. It is pointed out in the order passed on 22nd June, 2006 that a complaint was received from the office of Protector of Emigrants against the petitioner regarding trafficking of Indian females abroad and immoral activities which attracts penal provisions mentioned in the order. 4. Bases upon this complaint, a show cause notice dated 7th May, 2006 was served. The order proceeds on the basis that a reply was not received. However, a statement of one female is recorded on 29th May, 2006 stating therein that the police authorities have treated her as a complainant and based upon her complaint, a F.I.R. has been lodged against the recruiting agent, petitioner before me. It was stated that one Shri Shakeel Adhikari, Proprietor of the agency who had submitted the application for clearance of these two females involved in the matter is also absconding. Based upon this, it has been held that the sole proprietor/recruiting agent is not a fit person -3- to continue to hold the registration certificate and, therefore, by resorting to powers conferred under section 14 of the Emigration Act, 1983, the subject order was passed. 5. That order was passed on 22nd June, 2006 and the petitioner was also called upon to furnish the explanation as to why the registration certificate should not be suspended indefinitely, 6. The petitioner furnished the explanation thereto and pointed out that the allegations are baseless because the petitioner had submitted 67 passports in the POE office, Mumbai for obtaining ECRS out of which 6 passports were of persons travelling to Uganda. The passports were submitted with return tickets. Two females in question were travelling to Uganda. Their passports were submitted after ensuring that both of them had travelled on ECRS earlier and returned back without taking any employment in any foreign country. Therefore, there was no reason for the petitioner to suspect that these females would take up any sort of work in Uganda. The passports were received by the company from a person called Amar and it -4- conformed to all the requirements and, therefore, the passports were submitted for ECRS. It is pointed out that the officers were told that if they had any doubt they can call the applicants for interview. However, these females were not called for interview. They had gone to Uganda for visit. In substance, the contention is that once these females travelled to the country abroad after obtaining clearance the petitioner had no control over their activities there. If they had involved in any indecent or immoral activities which is a penal offence, then, the petitioner cannot be held responsible as he is merely a facilitator. Reliance was also placed upon the order passed by the Sessions Court granting anticipatory bail and when the application was rejected on 2nd June, 2006, the petitioner surrendered before the Police Authorities. The petitioner was taken in custody and his statement is also recorded thereafter. The petitioner has been enlarged on bail. In fact, he has been discharged of offence as serious as under the Maharashtra Control of Organised Crimes Act (for short MCOCA). 7. Dissatisfied with this explanation and -5- apprehending that the petitioner being involved in the criminal case, although discharged under MCOCA the authorities proceeded to pass further order of 18th August, 2006 and it held that the person like the petitioner is not fit to continue to hold registration certificate having regard to the manner in which he had carried on the business of recruitment. In such circumstances, they passed further order extending suspension till determination of the question as to why the certificate should not be cancelled. 8. Aggrieved by the order of 18th August, 2006, the petitioner had preferred an appeal before the Ministry of Overseas, Indian Affairs, New Delhi and the said appeal is also dismissed. 9. It is challenging the order of 18th August, 2006 and the appellate order confirming the same delivered on 10th October, 2007 that the present petition has been filed. 10. Shri Abhyankar, the learned Senior Counsel appearing for the petitioner, contended that the petitioner cannot be held guilty straightway. It is not as if the petitioner has committed an -6- offence under the penal provisions referred to in the order. There is no question of the petitioner indulging in the activities which are attributed to the females in as much as the females had earlier gone to Uganda and returned back. The petitioner is a falicitator. He is in the business for a long duration. Upon his clearance some 42000 people have gone abroad in the past for employment or for other purpose. At no stage the authorities have accused him of indulging in any act much less under section 14(1)(a)and (g) of the Emigration Act, 1983. If the females who have travelled abroad undertook an employment and indulged in immoral activities illegally, then, the petitioner cannot be proceeded against. He submits that the authorities have failed to apply their mind that none of the grounds under the aforesaid provisions have been made out. He also invited my attention to Rule 22 of the Emigration Rules, 1983 and submits that a facilitator like the petitioner is not concerned with the question and more particularly with the above persons intending to depart from India, the purpose of their visit, present occupation and their status. That is a matter which falls within the domain of the Government of migrant and the -7- persons departing from India. In such circumstances, according to him, the impugned order deserves to be quashed and set aside. 11. Shri Raghuvanshi, the learned Additional Solicitor General of India appearing for the respondents, on the other hand submits that this is a clear case where there is a power conferred upon the authority to cancel/suspend the certificate. The power conferred is in public interest. It is to ensure that a person who has been granted registration complies with the terms and conditions of the certificate. Shri Raghuvanshi was at pains to point out that the petitioner was not fully exonerated but discharged from one of the offences. He submits that the order passed by the sessions Court would make it amply clear that in so far as the other offences are concerned the matter is still pending. That apart, the petitioner had given an undertaking on affidavit and had clearly stated that he would be responsible if any of the persons who stay overseas take up employment or migrate to other country or that the details provided by him are in any way found to be not in conformity with the documents submitted. My attention is invited to the affidavit of the -8- petitioner which has been filed containing the undertaking. My attention is also invited by him to section 14 of the Act. 12. With the assistance of the learned Counsel appearing for both sides, I have perused the show cause notice, the explanation of the petitioner to the same and the impugned order so also relevant statutory provisions. Section 14 of the Act reads as under: "14.Cancellation, suspension etc. of a certificate:-(1) The registering authority may cancel any certificate on any one or more of the following grounds and on no othern ground, namely,:- (a) that having regard to the manner in which the holder of the certificate has carried on his business or any deterioration in his financial position, the facilities at his disposal for recruitment, the holder of the certificate is not a fit person to continue to hold the certificate; (b) that the holder of the certificate -9- has recruited emigrants for purposes prejudicial to the interests of India or for purposes contrary to public policy; (c) that the holder of the certificate has, subsequent to the issue of the certificate, been convicted in India for any offence involving moral turpitude. (d) that the holder of the certificate has, subsequent to the issue of the certificate, been convicted by a court in India for any offence under this Act, the Emigration Act, 1922 (7 of 1922), or any other law relating to passports, foreign exchange, drugs, narcotics or smuggling and sentenced in respect thereof to imprisonment for not less than six months; (e) that the certificate has been issued or renewed on misrepresentation or suppression of any material fact; (f) that the holder of the certificate has violated any of the terms and conditions of the certificate; -10- (g) that in the opinion of the Central Government it is necessary in the interests of friendly relations of India with any foreign country or in the interests of the general public to cancel the certificate. (2) Where the registering authority, for reasons to be recorded in writing, is satisfied that pending the consideration of the question of cancelling any certificate on any of the grounds mentioned in sub-section (1) it is necessary so to do, the registering authority may, by order in writing, suspend the operation of the certificate for such period not exceeding thirty days as may be specified in the order and require the holder of the certificate to show cause, within fifteen days from the date of receipt of such order, as to why the suspension of the certificate should not be extended till the determination of the question as to whether the registration should be cancelled. -11- (3) A court convicting a holder of a certificate for an offence under this Act may also cancel the certificate; Provided that if the conviction is set aside in appeal or otherwise, the cancellation under sub-section (3) shall become void. (4) An order of cancellation of a certificate may be made under sub-section (3) by an appellate Court or by a court exercising its powers of revision. (5) Before passing an order cancelling or suspending a certificate the registering authority or the Court, as the case may be, shall consider the question as to provisions and arrangements which should be made for safe guarding the interests of emigrants and other persons with whom the holder of the certificate had any transactions in the course of his business as recruiting agent and may make such -12- orders (including orders permitting the holder of the certificate to continue to carry on his business with respect to all or any of such emigrants and other persons) as it may consider necessary in this behalf. (6) Where a certificate issued to any person has been cancelled under this section, such person shall not be eligible to make any application for another certificate under this Chapter until the expiry of a period of two years from the date of such cancellation." A bare reading of section 14 would indicate that the Registering Authority has been conferred with the discretion to cancel any certificate on any or more of the grounds stipulated in the subject provision and on no other ground. Sub-section (2) of section 14 stipulates that the Registering Authority for the reasons to be recorded in writing being satisfied that pending consideration of the question of cancelling any certificate on any of the grounds enumerated in sub section (1), it is necessary to do so, the -13- Registering Authority may suspend the operation of the certificate by an order in writing for a period not exceeding 30 days and require the holder of the certificate to show cause within 15 days from the date of receipt of the order why suspension should not be extended till determination of the question of its cancellation. 13. Upon perusal of this provision there is no substance in the grievance of Shri Abhyankar that the petitioner was not heard before the certificate was suspended. By its very nature the power of suspension is to be exercised inter alia in the interest of general public so also where the holder’s activities are found to be contrary to public policy and for various other grounds. Considering the nature of powers and emergent situation that may have to be tackled it would not be proper to read into a provision a right to be heard before the certificate is suspended, more so, when the period of 30 days stipulated is capable of being extended and thereafter a show cause notice is contemplated so also explanation. Thus, there is opportunity available to show cause and contend that the suspension should not be extended beyond the -14- above period. A complete explanation can be given with regard to the activities of the certificate holder. In such circumstances, it is futile to urge that any right of personal hearing is available while the certificate is being suspended. In so far as the extension of suspension is concerned, even that is a matter which must be decided by the registering authority. 14. It is not as if in the facts of this case that the authority had not satisfied itself with regard to the petitioner’s activities before arriving at a conclusion that he is not fit to continue to hold the certificate or that the public interest warrants exercise of power. On the other hand, undisputed fact is that criminal case is pending, discharge order, copy of which is annexed very clearly shows that the petitioner/accused is discharged from the provisions of MCOCA Act, 1999. However, he is not discharged from the offence under I.P.C. or Emigration Act or Immoral Trafficking (Prevention) Act. In such circumstances there is a clear prima facie case and allegation of the petitioner facilitating the females departing from India to Uganda and taking up a -15- job so also indulgening in immoral activities there. The criminal case is based upon the complaint and statement recorded. It is not as if the petitioner has no opportunity to exonerate himself. If he wishes to demonstrate and prove that he had no role to play, then, that opportunity is available at the Trial. The observations in paras 7 and 8 of the order passed by the Special Court would go to show that the petitioner is named as accused in the criminal case. It is in such circumstances that the authorities thought it fit to exercise powers under section 14 and pass the subject order. The petitioner’s appeal was placed before a High Powered Authority who is the Secretary in the Department referred to above. Opportunity of hearing was granted to him. The petitioner sought additional time to prove that he had no nexus with the ladies and time was granted. Additional affidavit was allowed to be tendered and taken on record so also its contents have been considered. Thereafter another hearing was held. In such circumstances, it cannot be said that the authorities were not satisfied that a case is made out under section 14(1)(a) and (g) of the Emigration Act, 1983. I am satisfied from the -16- perusal of the impugned orders that in the facts and circumstances of this case the authorities were justified in exercising the powers conferred upon them and suspending the certificate of the petitioner till determination of the question of its cancellation. 15. This is not a fit case for exercise of extra ordinary, discretionary and equitable writ jurisdiction under Articles 226 and 227 of the Constitution of India. Petition is dismissed. No order as to costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)