Mohideen Haniff v. Union of India, Ministry of External Affairs

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 24.01.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.130 of 2006Mohideen HaniffAppellant v.1. Union of India, rep. by the Secretary, Ministry of External Affairs, New Delhi.2. The Joint Secretary, Government of India, Ministry of External Affairs, CPV Division, Patiala House, New Delhi 110 001.3. The Appellate Authority, Chief Passport Officer, Patiala House, New Delhi 110 001.RespondentsWrit Appeal filed under clause 15 of the Letters Patentagainst the order of the learned single Judge dated 23.04.2004 madein writ petition No.8246 of 2003. This Petition presented to thisCourt under Article 226 of Constitution of India to issue a Writ ofCertiorarified Mandamus calling for the records of the 2ndRespondent comprised in Order No.VIII/402/App.128/02 dated12.12.2002 and set aside the same as being arbitrary, illegal andcontrary to law and consequently direct return of the petitionerspassport bearing No.Z1522291.For Appellant :Mr.Rahul BalajiFor Respondents:Mr.V.T.Gopalan,Additional Solicitor General, forMr.K.Ravindranath, SCGSC https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTK.RAVIRAJA PANDIAN, J.The appellant in this appeal assails the order of the learnedsingle Judge dated 23.04.2004 made in writ petition No.8246 of 2003dismissing the writ petition filed by the appellant for issuance ofwrit of certiorarified mandamus to quash the order of the secondrespondent dated 12.12.2002 as being arbitrary, illegal andcontrary to law and consequently direct the return of theappellant's passport bearing No.Z-1522291. 2. The writ petition came to be filed in the followingcircumstances : The petitioner was a partner of M/s Ama Travels,a registered recruitment agency in south India. In the course ofthe business, the appellant recruited and sent 512 trainees toKuwait between 09.05.2001 to 25.07.2001. According to theappellant they were sent on the request of the two companiesbelonging to a group of companies from Kuwait, namely, Al BlasemGeneral Trading & Cont. Co., and Gersen Ge. Trad. & Cont. Est. Theunderstanding was that the Group of companies at Kuwait wouldprovide training and thereafter obtain necessary permit and visabefore giving them employment. However, the appellant received ashow cause notice dated 24.01.2002 from the First Secretary (Cons),Embassy of India, Kuwait calling upon the appellant to show causeas to why his passport should not be revoked and other legalproceedings be initiated against him, as the embassy, after carefulexamination of the complaints received against the appellant, hascome to the conclusion that the appellant was responsible forfraudulent/illegal supplying of 512 employees sponsors in Kuwait;that the appellant has been holding the passports of about 252employees; and that the workers brought by him to Kuwait havegenuine fear of harassment and victimisation by him, as he isopposed to their efforts to come back to India. The firm, inwhich the appellant was a partner, sent a detailed reply to theshow cause notice. The firm also took further steps to negotiatewith the other companies at Kuwait and also took serious effortsfor repatriating the workers at its own cost. While that being so,when the appellant presented his passport for immigration on07.07.2002, for departure to Saudi Arabia, the Senior ImmigrationOfficer collected the passport and informed the appellant that thesame was being forwarded to the Regional Passport Officer, Trichyon the ground that there was an order from him under section 10 ofthe Passport Act, 1967. 3. It is the further case of the appellant that as no orderhas been served on the appellant, the appellant preferred an appealunder section 11 of the Passport Act before the AppellateAuthority, the Chief Passport Officer, Patiala House, New Delhiexplicitly stating that the order of impounding the passport was https://hcservices.ecourts.gov.in/hcservices/ not served on him and there was no legal necessity for impoundingthe appellant's passport. The appellant approached this Court byway of Writ Petition No.41945 of 2002 challenging the veryimpounding of the passport. However, in view of the pendency of theappeal before the appellate authority, this Court, by its orderdated 25.11.2002 directed the Secretary, Ministry of ExternalAffairs, New Delhi, the first respondent therein to furnish a copyof the order in and by which the appellant's passport came to beimpounded within two weeks from the date of production of a copy ofthe order by the appellant. In the said order, the Court gaveliberty to the appellant to raise additional grounds in the pendingappeal before the Chief Passport Officer, the appellate authority.Even before the order was furnished, the appellate authority, byorder dated 12.12.2002 dismissed the appeal on the ground that theappellant has violated section 17 of the Passport Act, 1967 bywrongfully confining 250 workers against their will and section 10(3)(f) for withholding their passports and as such the action takenunder section 10(3)(c) of the Act was in accordance with law. Thecorrectness of the said order was canvassed in the writ petitionNo.8246 of 2003. 4. The learned single Judge dismissed the writ petition byholding that under section 10 of the Passport Act, the authoritieshave been vested with the power for either varying, impounding oralso revocation of passports or other travel documents. Section 10(3)(c) specifically enables the Passport Officer to impound orcause to be impounded or revoke the passport if the authoritydeemed it necessary in the interest of the general public. Undersection 10(3)(f) of the Act if the passport holder contravenes theconditions of the passport, then the impounding or revocation, asthe case may be, could be resorted to. As per section 17 of thePassport Act, the passport always remains the property of theCentral Government and holding of the passport by a passport holderwould only mean that he is the custodian of the property of theCentral Government. When it came to light that the passport holderis indulged in violation of the provisions of the section 10(3) ofthe Act it could not be held that the impounding the passport isillegal. The correctness of the said order is put in issue in thiswrit appeal.5. Counsel on either side started to argue on merits byputting forth the facts of the case. Learned counsel for theappellant submitted the facts of the case, as narrated above andultimately contended that all 512 persons were repatriated at thecost of the appellant and they have also been paid substantialamount to compensate the loss, however, maintained that theappellant has not committed any mistake and only the groupcompanies at Kuwait were at fault in engaging them as workers whenthere was no work permit, contrary to the understanding that thecompanies would only give training and thereafter obtain a work https://hcservices.ecourts.gov.in/hcservices/ permit. The learned Additional Solicitor General argued forsustaining the order passed by the appellate authority, which cameto be confirmed by the learned single Judge. 6. Heard the learned counsel on either side and perused thematerials available on record.7. From the above contentions of the parties, it is is theduty of the Court to decide whether the order of impounding ofpassport has been passed in accordance with law. In that view ofthe matter, when the appellant was asked to point out the orderpassed under section 10(3)(c) or 10(3)(f) of the Act, learnedcounsel for the appellant has pointed out that the order dated06.02.2002 which is available at page No.3 of the original typedset of papers as the order of impounding. The said order read asunder :EMBASSY OF INDIAPB 1450 KUWAITDate 06.02.2002KUW/CONS/408/1/2002To1. All Passport issuing Authorities in India2.All Indian Mission/posts abroad3.All check posts in India4.The Director of Intelligence Bureau MHA, New Delhi5.The Deputy Secretary (PV) MEA, New Delhi6.All Protector of Emmigrants in India7.The Chief Immigration Officer, Shastri Bhavan, Madras,Trivandrum.8.The Superintendent of Police, SB CID, Madras.9.The Chief Secretary, All State Government and UnionTerritories in IndiaSubject:Impounding of Passports – RegSir,It has been decided to impound passport mentioned in theannexure under section 10(3)(f) of the Passport Act, 1967.Hence, if the said passport is presented to you for anyservice it may be seized and forwarded to this officeimmediately. No passport facilities whatsoever should begranted to the individual without prior reference to thisoffice.Yours faithfully,Sd/- (Francis Xavier XAXA)Second Secretary https://hcservices.ecourts.gov.in/hcservices/ S.No. Name & F' Name, Date & Place PPT No. & date & File No. of Birth & Address place of issue & remarks1. Haniff Mohideen02.04.1983 Z 152291 S/o Mohideen Adhiramapattinam24.02.2000 KUW/Cons/1/2002 42 Pudumanai St., Trichirappalli Adhiramapattinam Thajavur Diustrict,Illegal supply Tamilnaduof labour.8. In the counter affidavit filed on behalf of the thirdrespondent by Mr.A.Pandurangan, S/o (Late) P.Arumugam, ActingPassport Officer in the Office of the Passport, Trichy, in the writpetition, it is stated in paragraph 3 that since the appellant hassubmitted no explanation to the show cause notice (dated24.01.2002) the competent authority, namely, the Embassy of India,Kuwait has passed an order impounding his passport under section 10(3)(f) of the Act. Copy of the said order was communicated to theappellant/petitioner on 03.01.2003. In the counter affidavit swornin by the Passport Officer, Trichy, filed in the present appeal, inparagraph 5, it is stated that the appellant was issued with theshow cause notice dated 24.01.2002 by the Embassy of India, Kuwaitand handed over to him in person on 24.01.2002 by which theappellant was directed to give explanation within 10 days. Sincethe appellant had not responded, his passport was impounded by theEmbassy of India, Kuwait, vide KUW/CONS/408/1/2002 dated 06.02.2002presuming that the appellant has nothing to explain. The saidletter has been perused by us. This is nothing but a letter whichhas been extracted in paragraph-7 above in which the secondsecretary, Francis Xavier has informed that it has been decided toimpound the passport of the appellant under section 10(3)(c) of thePassport Act and informed the addressee therein that if the saidpassport was presented for any service, it might be seized andforwarded to the office. Hence, the learned Additional SolicitorGeneral was requested to place the file relating to the case beforethis Court and find out whether any order as required under the Acthas been passed by the authorities. The learned Solicitor Generalperused the file and fairly stated that the order dated 06.02.2002referred to by the appellant as well as in the counter affidavit isnot the order of impounding passed by the appropriate authority, itis only an intimation to the addressee therein that the appropriateauthority has intended to impound the passport of the appellant.We also perused the file and we find no order passed under section10(5) of the Act is available in the file.9. In this juncture it is appropriate to refer to therelevant provisions : https://hcservices.ecourts.gov.in/hcservices/ Section 10. Variation, impounding and revocation ofpassports and travel documents — (1) The passport authoritymay, having regard to the provisions of sub-section (l) ofSection 6 or any notification under Section 19, vary orcancel the endorsements on a passport or travel document ormay, with the previous approval of the Central Government,vary or cancel the conditions (other than the prescribedconditions) subject to which a passport or travel documenthas been issued and may, for that purpose, require theholder of a passport or travel document, by notice inwriting, to deliver up the passport or travel document to itwithin such time as may be specified in the notice and theholder shall comply with such notice. (2) ............ (3) The passport authority may impound or cause to beimpounded or revoke a passport or travel document,— (a) if the passport authority is satisfied thatthe holder of the passport or travel document is inwrongful possession thereof; (b) if the passport or travel document wasobtained by the suppression of material information oron the basis of wrong information provided by theholder of the passport or travel document or any otherperson on his behalf: Provided that if the holder of such passportobtains another passport, the passport authority shallalso impound or cause to be impounded or revoke suchother passport.] (c) if the passport authority deems it necessaryso to do in the interests of the sovereignty andintegrity of India, the security of India, friendlyrelations of India with any foreign country, or in theinterests of the general public; (d) if the holder of the passport or traveldocument has, at any time after the issue of thepassport or travel document, been convicted by a courtin India for any offence involving moral turpitude andsentenced in respect thereof to imprisonment for notless than two years; (e) if proceedings in respect of an offencealleged to have been committed by the holder of thepassport or travel document are pending before acriminal court in India; https://hcservices.ecourts.gov.in/hcservices/ (f)if any of the conditions of the passport ortravel document has been contravened; (g) if the holder of the passport or traveldocument has failed to comply with a notice under sub-section (l) requiring him to deliver up the same; (h) if it is brought to the notice of the passportauthority that a warrant or summons for the appearance,or a warrant for the arrest, of the holder of thepassport or travel document has been issued by a courtunder any law for the time being in force or if anorder prohibiting the departure from India of theholder of the passport or other travel document hasbeen made by any such court and the passport authorityis satisfied that a warrant or summons has been soissued or an order has been so made. (4) The passport authority may also revoke a passportor travel document on the application of the holder thereof.(5) Where the passport authority makes an order varyingor cancelling the endorsements on, or varying the conditionsof, a passport or travel document under sub-section (l) oran order impounding or revoking a passport or traveldocument under sub-section (3), it shall record in writing abrief statement of the reasons for making such order andfurnish to the holder of the passport or travel document ondemand a copy of the same unless in any case, the passportauthority is of the opinion that it will not be in theinterests of the sovereignty and integrity of India, thesecurity of India, friendly relations of India with anyforeign country or in the interests of the general public tofurnish such a copy.(6) ..............(7) ...............(8) ............... (9) ...............11. Appeals --(1) Any person aggrieved by an order of thepassport authority under clause (b) or clause (c) of sub-section (2) of section 5 or clause (b) of the proviso tosection 7 or sub-section (1), or sub-section (3) of section10 or by an order under sub section (6) of section 10 of theauthority to whom the passport authority is subordinate, mayprefer an appeal against that order to such authority(hereinafter referred to as the appellate authority) andwithin such period as may be prescribed : https://hcservices.ecourts.gov.in/hcservices/ Provided that no appeal shall lie against any ordermade by the Central Government.(2) No appeal shall be admitted if it is preferredafter the expiry of the period prescribed therefor.Provided that an appeal may be admitted after theexpiry of the period prescribed therefor if the appellantsatisfies the appellate authority that he had sufficientcause for not preferring the appeal within that period.(3) The period prescribed for an appeal shall becomputed in accordance with the provisions of the LimitationAct, 1963 (36 of 1963), with respect to the computation ofthe periods of limitation thereunder.(4) Every appeal under this section shall be made by apetition in writing and shall be accompanied by a copy ofthe statement of the reasons for the order appealed againstwhere such copy has been furnished to the appellant and bysuch fee as may be prescribed for meeting the expenses thatmay be incurred in calling for relevant records and forconnected services.(5) In disposing of an appeal, the appellate authorityshall follow such procedure as may be prescribed;Provided that no appeal shall be disposed of unless theappellant has been given a reasonable opportunity ofrepresenting his case.(6) Every order of the appellate authority confirming,modifying or reversing the order appealed against shall befinal."The procedure prescribed is contained in Rule 16, which read asunder :" 16. Procedure to be followed by appellate authority :On receipt of an appeal, the appellate authority maycall for the records of the case from the authority whichpassed the order appealed against and after giving theappellant a reasonable opportunity of representing his case,pass final orders."10. As per section 10(3)(c) of the Act power is vested withthe Passport Authority to impound or cause to be impounded orrevoke a passport or travel document of a person if the passportauthority deems it necessary to do so in the interest of thegeneral public. Under clause (f) to subsection (3) of section 10 https://hcservices.ecourts.gov.in/hcservices/ of the Act the passport authority can impound or cause to beimpounded or revoke a passport or travel document if any of theconditions of the passport or travel documents has beencontravened. 11. From the above provision, there is absolutely no doubt asto the power vested with the Passport Authority to impound thepassport. But, sub-section 5 of section 10 requires that the orderimpounding of the passport under section 10(3) should be in writingwith the brief statement of reasons for making such an order andcopy of the same shall be furnished to the holder of the passportunless in any case the passport authority is of the opinion that itwill not be in the interests of sovereignty and integrity of India,the security of India, friendly relations of India with any foreigncountry or in the interests of the general public to furnish such acopy. But in this case, such an order invoking the power, asreferred to, has not been passed. The order dated 06.02.2002referred to earlier, admittedly and conceedingly cannot be regardedas one passed under section 10(5) of the Act. The position hasbeen accepted by the learned Additional Solicitor General. 12. As per section 11, an appeal is maintainable against theorder passed under subsection (3) or (6) of section 10 of the Act.On fact, we have concluded that no order under section 10(3) hasbeen passed. For that reason, neither the appeal filed nor theorder passed on that appeal could be regarded as an appeal or orderpassed as per the statutory provisions. 13. In the aforesaid circumstances of the case, we are of theview that the appellate order dated 12.12.2002 cannot be regardedas an order purported to be passed under section 11 of the Act andit cannot be legally sustained as there is no order of impoundingin existence, which formed the basis for filing the appeal and theorder of the learned single Judge approving the same is also liableto be set aside and are accordingly set aside. 14. In the affidavit filed in support of the writ petition itwas averred that a reply to the show cause notice was submitted.In the counter it is averred that the appellant has not sent anyreply to the show cause notice dated 24.01.2002 calling for theappellant as to why the appellant's passport should not be revokedand other legal proceedings be initiated. The reply dated28.09.2001 referred to by the appellant is only a reply to the showcause notice dated 21.09.2001 issued by the Protector of Emigrants,Chennai calling upon the appellant as Managing Partner of the firmM/s.Ama Travels to explain as to why action should not be taken forcontravening the provisions of the Emigration Act, 1983. From thefactual position, it is clear that the appellant has not filed anyreply to the show cause notice dated 24.01.2002. https://hcservices.ecourts.gov.in/hcservices/

15. Having regard to the fact that the passport of theappellant has been seized as early as 07.07.2002 and the matter hasbeen dragged on for more than five years under litigation, we areof the considered view that interest of justice would subserve ifthe appellant is given an opportunity to file his explanation tothe show cause notice dated 24.01.2002 so as to enable theauthority to proceed within the prescribed period. Thus, theappellant is directed to file his reply to the show cause noticedated 24.01.2002 within a period of two weeks from the date ofreceipt of a copy of this order and thereupon, the authorityconcerned is directed to pass an order as required under section 10(5) of the Act within four weeks thereafter. While passing theorder, the authorities shall take note of the observations of theSupreme Court in the case of Maneka Gandhi v. Union of India, AIR1978 SC 597 (para 87 page 648) which read as follows :"We hope and trust that in future also wheneverthe passport of any person is impounded under section10(3)(c), the impounding would be for a specifiedperiod of time which is not unreasonably long, eventhough no contravention of any fundamental right may beinvolved. "16. With these observations, the appeal is disposed of. Nocosts. The connected miscellaneous petitions are closed.24.01.2002This appeal having been posted on Friday, the Fifteenth day ofFebruary 2008 (15.2.2008) for being mentioned in pursuance to theorder of this Court dated 24.01.2008 and in the presence of theaforesaid Advocates the Court made the following order:-This matter is heard on being mentioned to at the instance ofthe counsel for the appellant.2. This appeal has been disposed of by us by our order dated24.1.2008 directing the appellant herein to file his reply to theshow cause notice dated 24.1.2002 within a period of two weeks fromthe date of receipt of copy of the order and thereupon theauthority was directed to consider and pass orders as requiredunder Section 10(5) of the Act within four weeks thereafter.3. Now it is argued before us that the authority, who issuedthe show cause notice, was the First Secretary, Embassy of India atKuwait. If the reply to the show cause notice is sent to him, theenquiry has to be conducted by him at Kuwait. In order to attend toenquiry, the petitioner is not having any passport as the passporthas already been seized. Hence, suitable modification may be madein the order dated 24.1.2008. https://hcservices.ecourts.gov.in/hcservices/

4. Learned counsel appearing for the Passport Authoritysubmitted that the appellant may be directed to submit his reply tothe show cause notice to the Regional Passport Officer at Trichyand he is competent to conduct the enquiry under the Passport Act.If a personal hearing is required in this case, the authority wouldgive a personal hearing to the appellant and proceed further anddispose of the issue as directed by this Court by its order dated24.1.2008.5. Having regard to the above submission, in paragraph No.15of the order dated 24.1.2008, the word employed "the authorityconcerned" means "the Regional Passport Officer at Trichy". Inorder to have clarity on the issue, the order dated 24.1.2008 isclarified to the following effect:"The appellant can file his reply to the show cause notice tothe Regional Passport Officer at Trichy within a period of one weekfrom the date of receipt of copy of this order and and the RegionalPassport Officer, Trichy is directed to proceed further as directedby this Court in the order dated 24.1.2008 and dispose of the samewithin a period of four weeks thereafter."Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Secretary, Union of India, Ministry of External Affairs, New Delhi.2. The Joint Secretary, Government of India, Ministry of External Affairs, CPV Division, Patiala House,New Delhi 110 001.3. The Appellate Authority, Chief Passport Officer, Patiala House, New Delhi 110 001. 1 cc to M/s.K.Ravindranath, Advocate, SR.32491 cc to M/s.Sathish Parasaran, Advocate, SR.7902akr (co)dv/31.1.KK 21/2W.A. No.130 of 200624.01.2002/ 15.2.2008