XAVIER GEORGE v. NONE

R. BASANT, J.------------------------------------------------- W.P.(c) No. 28391 OF 2007 &1581 of 2008------------------------------------------------- Dated this the 18th day of June, 2008JUDGMENT These writ petitions are filed by the petitioners who are employer and the employee respectively. Against the employee, an allegation is raised under the Foreign ExchangeManagement Act, 1999 (FEMA).

Relevant and crucial facts first. The employee i.e., the petitioner in W.P.(C) No.1581/08 was intercepted by the Railway police on 11/8/07 when he was travelling in berthNo.23 of S1 coach proceeding from Trivandrum to Mangalore. His conduct appears to have generated suspicion in the minds of the Railway Protection Force personnel on duty. Accordingly, he was intercepted and a large amount ofRs.7,28,070/- which was found in his possession was seized by the police. As the police did not find any specific offence W.P.(c) No. 28391 OF 2007 &1581 of 2008 -: 2 :-committed by him which they can investigate and they suspected infraction of the provisions of the FEMA the saidemployee/petitioner was forwarded to the officials of the Enforcement Directorate. Accordingly, the seized cash was handed over along with a report to the officers of the Enforcement Directorate.

The Officials of the Enforcement Directorate had allegedly questioned the employee/petitioner and it is alleged that they have recorded a statement dated 13/8/07 from the saidemployee/petitioner. It is further contended, on behalf of therespondents/Enforcement Directorate, that a show cause notice has been issued to the said employee/petitioner on 4/1/08 under registered post with acknowledgment due. It is their contention that the said notice has been received by the petitioner/employeeand that he has not sent any reply. At any rate, it is conceded that adjudication proceedings have not gone forward and remains with the receipt of the show cause notice by theemployee/petitioner.

The petitioners have an altogether different version to advance. They admit that the currency was seized from the possession of the petitioner/employee. But it is the very specific case that this amount of currency was available with the W.P.(c) No. 28391 OF 2007 &1581 of 2008 -: 3 :-employee/petitioner consequent to his collection of such amounts due from various customers to his employer. He was thus carrying this large amount of cash with him. There were certain, earlier instances which instilled apprehensions in the mind of the employee/petitioner and as cautioned by his employer, he was very zealously attempting to keep the money with him without any occasion for any one to thieve or rob it. The officials of the RPF, it is contended, had become unnecessarily suspicious – may be by the looks of theemployee/petitioner who is big built and has the appearance of apathan. He is a pathan, it is further submitted. Initially, thinking that he was being tormented by miscreants, he did not reveal the details. But later, on realising that it was the officials who were apprehending him, he had allegedly made a clean breast of what had happened to the police officials. Later, he was told that he can collect the amount only from the officials of the Enforcement Directorate. He had gone to the said officials. Though they promised initially that the cash will be returned to him, they later took a different stand. They wanted him to givea statement. The statement did not contain the true particulars. He was forced to subscribe to a statement which the officials of the Enforcement Directorate dictated. He does not know W.P.(c) No. 28391 OF 2007 &1581 of 2008 -: 4 :-Malayalam well. But he was compelled to write the statement dictated to him by the officials of the Enforcement Directorate. After such statement was innocently given by the gulliblepetitioner/employee, the attitude of the officials changed and they did not return the cash.

This obliged the employee/petitioner to report the fact to the employer/petitioner who raised a grievance before the officials of the Enforcement Directorate. That representation has not been considered by them on merit at all so far and thepetitioner/ employee and the petitioner/employer have both come before this Court now with these writ petitions for adirection to the respondents to release the amount ofRs.7,28,070/- which was taken from the possession of theemployee/petitioner.

Statements have been filed by the respondents. The file relating to the case has been placed before me. The learned counsel for the respondents submits that proper adjudication proceedings have already been initiated under Sec.16 of theFEMA. The petitioner/employee has not so far responded to the show cause notice and, in these circumstances, the adjudication proceedings have not made any headway because of the pressure of work and because of the fact that the show cause W.P.(c) No. 28391 OF 2007 &1581 of 2008 -: 5 :-notice has not been replied to by the employee/petitioner. Thematter is resting with the respondents, it is submitted.

I have considered all the relevant inputs. I have heard the submissions of the learned counsel for the petitioners and the learned counsel for the respondents. Having considered all the relevant inputs, I am of opinion that the appropriate and ideal course to be followed in these cases is to direct the respondents i.e., the 3rd respondent to complete the adjudication proceedings at the earliest and pass appropriate orders.

The petitioners have a grievance that the show cause notice has not been received by either of the petitioners. I amsatisfied, in these circumstances, that appropriate direction to ensure and protect the interests of the petitioners and also to ensure an expeditious disposal of the adjudication proceedingscan be issued.

These writ petitions are, in these circumstances, allowed in part. Following directions are issued: (i) The respondents shall furnish to both the petitioners copies of the show cause notice dated 4/1/08 (Ext.R1(b) with copies of all enclosures in W.P.(c) No.1581/08) to the learned counsel for the petitioners under acknowledgment within aperiod of 7 days from this date. Both the respondents shall have W.P.(c) No. 28391 OF 2007 &1581 of 2008 -: 6 :-opportunity to show cause against Ext.R1(b) show cause notice within a period of two weeks from the date of service of such copy. (ii) The 3rd respondent shall pass appropriate orders in such adjudication proceedings within a further period of one month from that date.

The learned counsel for the petitioner/employer prays that there may be an interim direction to release the amount seized to the said petitioner on appropriate conditions. Thatpetitioner is willing to produce bank guarantee for the amount, it is submitted. In view of the fact that I have directed expeditious disposal of the proceedings, I am not persuaded to agree that any such interim directions need be issued.

Compliance with the directions for disposal of the adjudication proceedings shall be reported to this Court by the2nd respondent. Sd/- (R. BASANT, JUDGE)Nan///true copy//P.S. to Judge W.P.(c) No. 28391 OF 2007 &1581 of 2008 -: 7 :-