Cement Workers Karmachari Sangh v. Jaipur Udyog Limited and others). On the other hand, Mr M Bhagawati and Ms
Case Details
WP(C) 3702/2010 BEFORE HON’BLE MR JUSTICE BK SHARMA JUDGMENT AND ORDER (ORAL)
Decision
1. This writ petition is directed against the judgment and order dated 15.5 .2010 passed by the Foreigner’s Tribunal, Golaghat in Case No. FTG 503/07(State vs. Md Bardul Islam). By the said judgment, answering the particular reference m ade against the petitioner he has beendeclared to be a foreign national who ente red into the Indian Territory illegally on or after 25.3.1971.The order is ex-pa rte pursuant to ex-parte proceeding. According to the petitioner, the respondent No.8 i.e. his engaged counse 2. l did not take proper action in the matter and consequentially ex-parte proceedi ng was ordered and finally the ex-parte order was passed. The only explanation m ade in the writ petition for non-appearance of the petitioner is as follows:- (cid:28)That the petitioner begs to state that the petitioner had engaged learned advoc ate, Md Sahidur Rahman (Deep), Golaghat District for Association to conduct his case, but the engaged counsel did not take any steps in the case and as such th e ex-parte judgment and order has been passed declaring the petitioner as foreig ner under Section 2(a) of the Foreigners Act, 1946and as such for the fault/def ault of the learned engaged advocate, the petitioner should not be suffered and as such the present case may kindly be remanded to the learned Foreigners’ Tribu nal for fresh trial under the law otherwise the petitioner would suffer irrepara ble loss, hardship and injustice. (cid:29) I have heard Mr AR Sikdar, learned counsel for the petitioner. I have al 3. so heard Mr M Bhagawati, learned CGC and Ms R Gogoi, learned State counsel. Mr Sikdar submits that due to fault on the part of the respondent No.8 t 4. be made to be suffered and accordingly the ex-parte orde he petitioner cannot r is to be set aside and quashed. He has also placed reliance on the judgment of the Apex Court reported in (2008) 4 SCC 709 (Cement Workers Karmachari Sangh vs Jaipur Udyog Limited and others). On the other hand, Mr M Bhagawati and Ms R Gogoi, learned counsel for t 5. he respondents submitted that the petitioner having been afforded reasonable op portunity of hearing and he having not accepted the same cannot now blame the e ngaged counsel unmindful to his own duty to respond to the proceeding before the Tribunal. 6. I have considered the submissions made by the learned counsel for the pa rties and have also considered the entire materials on record including the reco rd received from the Tribunal. The ground assigned by the petitioner for non-app earance has been noted above. No material particulars have been disclosed as to the absence of the petitioner as per the requirement of Foreigners Act, 1946 and the Foreigners (Tribunal) Order 1964. To establish his case, the burden was on the petitioner to prove that he is an Indian citizen. It was not a writ proceedi ng so as to contend that the petitioner was dependent on his engaged counsel. Wh ile attributing fault on the part of the engaged counsel the petitioner has conv eniently evaded his own duty to respond to the proceeding. 7. On perusal of the case records received from the Tribunal what is seen i s that the petitioner on receipt of the notice appeared before the Tribunal on 2 4.10.2007 and thereafter he remained absent on the subsequent dates namely, 17 .12.2008, 17.12.2007, 10.4.2008, 13.6.2008 etc. He again appeared on 20.10.2008 praying for setting aside the ex-parte order of hearing which was ordered on 26. 8.2008. On the basis of the application made by the petitioner the ex-parte orde r was set aside by order dated 20.10.2008 fixing the matter on 18.11.2008. Howev er, the petitioner again disappeared and did not appear on 18.11.2008 and therea fter also on 6.1.2009, 4.3.2009, 6.4.2009, 29.4.2009, 30.4.2009, 12.6.2009, 20.7 .2009, 19.8.2009, 8.10.2009, 3.11.2009, 23.11.2009, 3.2.2010, 29.4.2010 and 15.5 .2010. Situated thus, the Tribunal had no other option than to proceed ex-parte against the petitioner and thereafter passed the impugned judgment. 8. As has been held by the Full Bench of this Court in State of Assam & ors vs. Moslem Mondal & ors, reported in 2013 (1) GLT 809, although the Tribunal ha s power and jurisdiction to set aside ex-parte order but such application shall not be entertained in a routine manner. If no good and sufficient ground is sho wn, the Tribunal is entitled to reject such petition at the very threshold. For a ready reference, paragraph-92 of the judgment is quoted below:- (cid:28) As discussed above, the Tribunals constituted under the Foreigners Act with the 1964 Order have to regulate their own procedure and they have also the quasi -judicial function to discharge and hence in a given case the Tribunal has juris diction to entertain and pass necessary order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or t hat he was prevented by sufficient cause from appearing in the proceeding, reas on for which was beyond his control. Such application, however, should not be en tertained in a routine manner. The Tribunal can entertain such application provi ded the proceedee could demonstrate the existence of the special/exceptional ci rcumstances to entertain the same by way of pleadings in the application filed f or setting aside the ex-parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, wo uld have the jurisdiction to reject such application at the threshold, if no gro und is made out. Question (d): In what manner the investigation is to be carried out by the instrumentality of the State before making a reference to the Tribu nal under the provisions of the 1964 Order ? 9. The decision on which Mr AR Sikdar has placed reliance i.e. Jaipur Udyo g Limited (supra) is not relevant in the given facts and circumstances of the pr esent case. In the said judgment the respondents were provided with an opportuni ty of hearing by the High Court. The matter was related to some labour dispute. Further, opportunity was provided having regard to communication gap resulting f rom mistake in recording the interim order. In the present case it would be evid ent from the dates mentioned above that the petitioner not only failed to respon d to the proceeding but as submitted by Mr M Bhagawati, learned CGC, it is not o nly once but twice the Tribunal had set aside the order for ex-parte hearing. In spite of the said position the petitioner again absented himself from the proce eding umpteen numbers of times. 10. For all the aforesaid reasons I do not find any merit in this writ petit ion and accordingly it is dismissed. The Deputy Commissioner and SP(B), Golaghat shall ensure consequential action towards apprehending the petitioner for his d etention in the detention camp till such date he is deported to his country of o rigin. The Deputy Commissioner, Golaghat shall ensure that his name is deleted f rom the voters list. 11. Let copies of the order be sent to the said two authorities for their ne cessary follow up action. Another copy be furnished to Ms R Gogoi, learned State counsel for her necessary follow up action. 12. l, Golaghat along with a copy of this Judgment and order. The Registry shall send down the case records to the Foreigner’s Tribuna