[Cites 29, Cited by 0]
Karnataka High Court
Mr Christopher Charles Kamolins vs Union Of India on 9 February, 2026
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 9TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 26412 OF 2019 (GM-RES)
BETWEEN
MR CHRISTOPHER CHARLES KAMOLINS
S/O CHARLES VICTOR KAMOLINS
AGED ABOUT 41 YEARS,
CURRENTLY RESIDING AT NO.142,
TOWER 3, PEBBLE BAY,
FIRST MAIN ROAD, DOLLARS COLONY,
RMV 2ND STAGE, SANJAY NAGAR,
BENGALURU-560094
...PETITIONER
(BY SRI. K.G. RAGHAVAN SR. ADVOCATE FOR
SRI. ANIND THOMAS., ADVOCATE)
AND
Digitally signed UNION OF INDIA
by SHWETHA BY THE FOREIGN REGIONAL REGISTRATION OFFICER,
RAGHAVENDRA
FOREIGN REGIONAL REGISTRATION OFFICE,
Location: HIGH
COURT OF BUREAU OF IMMIGRATION,
KARNATAKA MINISTRY OF HOME AFFAIRS,
5TH FLOOR, A-BLOCK, TTMC,
BMTC BUS STAND BUILDING,
SHANTHI NAGAR, K.H.ROAD,
BANGALORE-560027
.... RESPONDENT
(BY SRI. K. ARAVIND KAMATH., ASGI., FOR
SRI. ADITYA SINGH., CGC )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
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CERTIORARI QUASHING THE LEAVE INDA NOTICE DATED MAY 1,
2019, BEARING REFERENCE NO. 03/FM/BOI/2019-LIN-162,
PRODUCED AS ANNEXURE-A TO THIS PETITION AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 16.12.2025, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The petitioner who is an Australian national/citizen is
before this Court seeking for the following reliefs:
i. Issue a writ of Certiorari quashing the Leave
India Notice dated May 1, 2019 bearing
reference No. 03/FM/BOI/2019-LIN-162,
produced as Annexure-A to the petition.
ii. Issue a writ of mandamus directing the
Respondent not to take any further action
pursuant to the Leave India Notice produced at
Annexure-A and to reverse any action that may
have been taken pursuant to the said Leave
India Notice; and
iii. Grant any other relief that this Hon'ble Court
may deem fit having regard to the facts and
circumstances of this Case, in the interests of
justice and equity.
2. The petitioner is an Australian citizen holding a valid
Australian passport. He asserts that he was granted
an Employment Visa (E-2) on 08.01.2018, permitting
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multiple entries into India and valid until 07.01.2020.
The said visa was issued on the basis of his proposed
employment as General Manager of Fisher and
Paykel Health Care India Private Limited, an Indian
subsidiary of Fisher and Paykel Health Care Limited,
a New Zealand-based multinational corporation with
operations in 36 countries and distribution of its
products in over 125 countries worldwide.
3. The company is engaged in the manufacturing,
design, and marketing of medical devices used in
respiratory care, acute care, and the treatment of
obstructive sleep apnea. It is stated that the
company has been operating in India since 2008. The
petitioner was appointed as General Manager with
effect from 01.02.2018 pursuant to an appointment
letter dated 11.12.2017.
4. According to the petitioner, prior to his appointment,
the Indian operations of the company were headed
by an Indian national who functioned as Resident
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Director and was responsible for managing business
operations within the country. It is alleged that
during that tenure, the company experienced
significant performance challenges, including high
attrition rates, particularly within its sales team,
adversely affecting overall business performance.
5. The petitioner asserts that the company undertook
an internal review or study to analyse the causes of
attrition and operational decline. It is claimed that
this review revealed that certain members of the
senior management were engaged in practices
inconsistent with the company's global ethics,
principles, and corporate culture. Consequently, the
services of the concerned senior management
personnel were discontinued.
6. It is in this background that the petitioner was
appointed as General Manager. The company
contends that the petitioner possessed the requisite
mix of experience, technical knowledge, and
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familiarity with the company's global business
standards necessary to stabilise operations and align
the Indian entity with international corporate
practices. It is further asserted that prior to
appointing the petitioner, the company conducted
enquiries to identify a suitable Indian candidate for
the position, but none was found to meet the
required qualifications and experience. On that basis,
the petitioner's appointment was finalised and the
Employment Visa was obtained.
7. Subsequently, on 11.07.2018, the Respondent,
Foreign Regional Registration Officer (FRRO)
addressed an email to the company seeking details
regarding the employment status of three former
Indian employees, two of whom were part of the
earlier senior management, and also sought
information regarding foreign nationals employed by
the company. The company responded on
26.07.2018 stating that the three former employees
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had resigned or separated in accordance with the
terms of their appointment.
8. Thereafter, on or about 25.07.2018, the FRRO again
called upon the company to furnish detailed
particulars regarding the employment of the
petitioner and another expatriate employee. The
company claims to have submitted a response to the
said query. Several further communications were
exchanged between the FRRO and the company in
the ensuing months.
9. Ultimately, on 19.06.2019, a Leave India Notice
(LIN) was issued to the petitioner directing him not
to remain in India. It is the legality and validity of
the said Leave India Notice that is challenged in the
present writ petition, in which the petitioner seeks
the reliefs prayed for.
10. Sri.K.G.Raghavan, learned senior counsel appearing
for the Petitioner would submit that:
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10.1. There being no eligible or suitably qualified
Indian candidate available for appointment to
the post of General Manager, the petitioner was
selected for the said position. It is contended
that the company had furnished all requisite
particulars and documentation to the
competent authorities at the time of seeking
the Employment Visa. Upon scrutiny of the
material placed before it, the High Commission
of India at Canberra granted the Employment
Visa (E-2) in favour of the petitioner. Once such
approval had been accorded by the competent
visa-issuing authority, the same could not,
according to the petitioner, be effectively
nullified by the FRRO through issuance of a
Leave India Notice (LIN), which in substance
amounts to cancellation of the Employment
Visa.
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10.2. The company had, prior to the petitioner's
appointment, experienced operational
instability under the earlier Indian
management, including high attrition rates in
the sales division, which adversely impacted
business continuity and client relationships. It is
submitted that these difficulties were attributed
to deviations from the group's global standards,
corporate ethics and management systems. In
order to restore organisational stability, the
services of the then General Manager and
certain senior employees were discontinued. In
that background, the petitioner was appointed,
he being familiar with the group's global
operations and culture.
10.3. In support of the petitioner's candidature, it is
submitted that he is an Australian citizen
possessing a Bachelor's degree in Nursing and a
Graduate Certificate in Critical Care Nursing. He
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had served the parent organisation for over
twelve years and possessed, according to the
company, the necessary technical proficiency,
managerial experience and institutional
familiarity to stabilise Indian operations,
restructure workflows and train local staff. It is
emphasised that no Indian candidate with
comparable expertise and organisational
exposure was available at the relevant time.
10.4. It is contended that while applying for the
Employment Visa, the company submitted a
detailed justification letter dated 14.12.2017 to
the High Commission of India at Canberra. The
letter set out the petitioner's qualifications,
experience and the reasons necessitating the
appointment of a foreign national, including the
assertion that no comparably experienced
Indian candidate was available. Upon
consideration of the said material, the
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competent authority granted the Employment
Visa on 08.01.2018, valid for multiple entries
until 07.01.2020. Upon arrival in India, the
petitioner registered with the FRRO on
09.02.2018 and was issued a Registration
Certificate/Residential Permit, which was
thereafter renewed upon compliance with the
applicable statutory norms.
10.5. It is submitted that during the year 2018,
certain queries were raised by the FRRO with
respect to the petitioner's employment and
other related matters. In response, the
company furnished what it describes as
comprehensive particulars, including
documentation evidencing the petitioner's
professional expertise and indispensability.
Despite this, the FRRO issued a Leave India
Notice, dated 01.05.2019, which was served
upon the petitioner on 19.06.2019. It is the
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petitioner's grievance that the said notice was
issued without assigning reasons and without
affording him any opportunity of hearing.
10.6. The LIN is arbitrary and procedurally improper.
It is contended that the petitioner was not put
on notice nor granted an opportunity to explain
his position prior to the issuance of the LIN,
thereby violating principles of natural justice. It
is further pointed out that a show-cause notice
was subsequently issued to the company on
04.06.2019 alleging that the petitioner had
fraudulently obtained the Employment Visa in
breach of visa norms.
10.7. Emphasis is laid on the sequence of dates. The
LIN is dated 01.05.2019 and was served on
19.06.2019, whereas the show-cause notice to
the company was issued only on 04.06.2019. It
is argued that there is no reference to the LIN
in the show-cause notice, which, according to
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the petitioner, indicates that the latter was an
afterthought. The petitioner submits that a
reply to the show-cause notice was promptly
furnished by the company on 20.06.2019
refuting the allegations. On this basis, it is
contended that the issuance of the LIN prior to
the show-cause notice demonstrates pre-
determination and non-application of mind on
the part of the FRRO.
10.8. It is further argued that the petitioner's
employment was valid, his selection was lawful,
and the documentation submitted to the visa-
issuing authority had been duly examined and
accepted. The Employment Visa having been
issued by the High Commission of India at
Canberra, it is submitted that the FRRO, by
issuing the LIN, has in effect sought to
overreach or override the decision of the visa-
issuing authority, which is impermissible in law.
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10.9. The petitioner asserts that the LIN was issued
arbitrarily and without issuance of any prior
show-cause notice to him personally. No
opportunity of hearing was afforded to him
before directing him to leave the country. Such
action, it is submitted, violates the principles of
natural justice and fair procedure.
10.10. On the aforesaid grounds, learned Senior
Counsel submits that the Leave India Notice is
liable to be quashed as being arbitrary,
violative of natural justice, issued without
jurisdiction, and unsustainable in law.
10.11. He relies upon the decision of the Hon'ble Apex
Court in Hasan Ali Raihany v. Union of
India1, more particularly Paras 1, 6, 7 and 8
thereof, which are reproduced hereunder for
easy reference:
1. In this writ petition, the petitioner prays for issuance of
a writ of mandamus quashing the order cancelling the
residence visa permit by order dated 7-10-2005. He has
1
(2006) 3 SCC 705
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also prayed for directions to the respondent to produce the
papers relating to grant of Indian citizenship to him by
naturalisation. He further prays that this Court may issue a
writ of certiorari quashing and setting aside the oral
direction or order of deportation passed by the respondents
and allow the petitioner to enter the Indian territory.
6. The question that arises for consideration is whether the
authorities intend to deport him again and if so, whether
they are obliged to disclose to the petitioner the reasons for
his proposed deportation.
7. Learned counsel for the petitioner has relied upon a
decision of this Court in National Human Rights Commission
v. State of Arunachal Pradesh [(1996) 1 SCC 742] and
particularly to the principles laid down in para 19 thereof
and submitted that the petitioner cannot be thrown out of
this country having regard to the fact that he was born in
this country and lived here for many years and his
application for grant of Indian citizenship is still pending. It
is not as if he has entered the territory of India stealthily
with any ulterior objective and, therefore, it is only proper,
even though he is not an Indian citizen, that he should at
least be informed of the reasons why he is sought to be
deported, and his representation if any in this regard
considered. The learned Additional Solicitor General has
fairly brought to our notice the principles laid down by this
Court in Sarbananda Sonowal v. Union of India [(2005) 5
SCC 665] . This Court in para 75 of the report has observed
as follows: (SCC p. 720)
"Like the power to refuse admission this is regarded as an
incident of the State's territorial sovereignty. International
law does not prohibit the expulsion en masse of aliens. (p.
351) Reference has also been made to Article 13 of the
International Covenant of 1966 on Civil and Political Rights
which provides that an alien lawfully in the territory of a
State party to the Covenant may be expelled only pursuant
to a decision reached by law, and except where compelling
reasons of national security otherwise require, is to be
allowed to submit the reasons against his expulsion and to
have his case reviewed by and to be represented for the
purpose before the competent authority. It is important to
note that this Covenant of 1966 would apply provided an
alien is lawfully in India, namely, with valid passport, visa,
etc. and not to those who have entered illegally or
unlawfully."
(emphasis in original)
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8. Having regard to the facts and circumstances of the
case, particularly, having regard to the fact that the
petitioner has entered this country legally upon the single
entry permit issued to him, it is only fair that the
competent authority must inform him the reasons for his
deportation. If such a decision is taken, the petitioner must
be given an opportunity to submit his representation
against his proposed expulsion. The competent authority
may thereafter consider his representation and pass
appropriate order. As observed by this Court, this
procedure may be departed from for compelling reasons of
national security, etc. In the instant case, we have not so
far noticed any fact which may provide a compelling reason
for the State not to observe this procedure.
10.12. Learned Senior Counsel, placing reliance on the
decision in Hasan Ali Raihany, submits that
before a person is directed to leave the country
or deported, the reasons forming the basis of
such action must be communicated to him,
particularly where the individual had entered
the country lawfully and in accordance with due
procedure. It is contended that deportation or
an order directing a foreign national not to
remain in India carries serious civil
consequences and therefore must conform to
the minimum standards of fairness and
transparency.
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10.13. It is further urged that the jurisprudence
emerging from the said decision recognises only
a limited exception to the requirement of
disclosure of reasons, namely, where
compelling considerations of national security
or public interest justify non-disclosure. In the
absence of such exceptional circumstances, the
affected individual must be informed of the
grounds so as to enable him to effectively
respond or seek appropriate remedies.
10.14. In the present case, it is submitted, there is no
allegation of threat to national security, public
order, or sovereignty of the State. The sole
basis for issuance of the Leave India Notice is
stated to be alleged irregularity or impropriety
in the procurement of the Employment Visa.
Such an allegation, according to the petitioner,
does not fall within the narrow category of
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cases where reasons may be legitimately
withheld.
10.15. It is therefore contended that the impugned
LIN, having been issued without furnishing
reasons and without affording an opportunity of
hearing, is contrary to established principles of
fairness and procedural propriety. The
petitioner submits that where entry was legal
and registration formalities were complied with,
expulsion without disclosure of reasons cannot
be sustained in law.
10.16. He relies upon the decision of the Hon'ble Delhi
High Court in the case of Mohd. Javed v.
Union of India2, more particularly paras 1, 25,
26, 27, 35, 37 and 42, which are reproduced
hereunder for easy reference:
1. By the present appeal filed under Clause 10 of the Letters
Patent of the Delhi High Court, the appellants Mohd. Javed
(appellant No. 1) and Nausheen Naz (appellant No. 2)
2
2019 SCC OnLine Del 8741
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impugn order dated 28.02.2019 made by the learned single
Judge of this Court in W.P. (C) No. 1835/2019, whereby the
single Judge has been pleased to dismiss the writ petition,
thereby upholding the 'Leave India Notice' dated 07.02.2019
issued by respondent No. 2 through the Deputy
Commissioner of Police, Special Branch, New Delhi ('Notice',
for short) directing appellant No. 2 to leave India within 15
days of receipt of the Notice, that is by 22.02.2019.
25. Much as the Ministry states in short affidavit dated
10.04.2019 that:
"... Based on these inputs, the Central Govt. has arrived at a
conclusion that the Appellant No. 2 has to be served with a
"Leave India Notice" in the interest of the security of the
nation."
26. We find no reasoning or basis for the Central
Government to have arrived at the conclusion as the
Ministry says above, nor any basis for perceiving a threat to
national security.
27. We have recorded the above only to say that the overall
facts and circumstances of the case, including in particular,
the conduct of the Ministry and the authorities, do not
inspire confidence or persuade us to believe that Nausheen
is a persona non grata.
35. We must also remind ourselves that our country is party
to the International Covenant on Civil and Political Rights
('ICCPR', for short) adopted by the General Assembly of the
United Nations on 19.12.1966, Articles 13, 17, 23 and 24
whereof read as under:
"Article 13. An alien lawfully in the territory of a State Party
to the present Covenant may be expelled therefrom only in
pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security
otherwise require, be allowed to submit the reasons against
his expulsion and to have his case reviewed by, and be
represented for the purpose before, the competent authority
or a person or persons especially designated by the
competent authority.
XXXXX
"Article 17.
1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or
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correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone has the right to the protection of the law
against such interference or attacks.
XXXXX
"Article 23.
1. The family is the natural and fundamental group unit of
society and is entitled to protection by society and the
State.
2. xxxxx
3. xxxxx
4. xxxxx
Article 24.
1. Every child shall have, without any discrimination as to
race, colour, sex, language, religion, national or social
origin, property or birth, the right to such measures of
protection as are required by his status as a minor, on the
part of his family, society and the State
2. Every child shall be registered immediately after birth and
shall have a name.
3. Every child has the right to acquire a nationality"
37. In the present case, the mandate of Articles 13, 17 and
23 have been thrown to the winds. The record does not
reveal that Nausheen has indulged in any unlawful conduct,
unfriendly activity or offensive act. Even upon perusal of the
'inputs' received from the Intelligence Bureau, as shared by
the Ministry with the court, no such act or omission is
discernible as would warrant unilateral, peremptory action
by the Ministry.
42. In the backdrop of the above administrative and legal
contours, the position that emerges is the following:
(a) Nausheen's LTV is valid until 08.06.2020. As of date, she
has also applied for citizenship in India, which application is
pending with the authorities;
(b) No notice, order or communication has ever been issued
to Nausheen by the Ministry or by any other authority
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calling upon her to show cause against any alleged breach
or violation of any terms or conditions of her LTV;
(c) Nausheen's LTV has never been cancelled;
(d) The Ministry's decision, as also the decision of the single
Judge, against Nausheen's continued residence in India are
based upon intelligence 'inputs' which, in our view, do not
disclose matters that are egregious enough nor do they
disclose a proximate or causal link between what is stated in
the 'inputs' and the issuance of the Notice;
(e) While the single Judge proceeds on the essential basis of
Nausheen being an alien who has no 'right' to continue to
reside in India, that view omits to note that being the
mother of two children who are Indian citizens and the wife
of an Indian citizen, directing Nausheen to leave the country
would break-up the family and would thereby be a serious
infraction of the rights of at least three Indian citizens,
namely the husband and the two sons aged 6 and 11 years,
to live as a family. It bears mention that appellant/petitioner
No. 1 in these proceedings is Mohd. Javed, an Indian
citizen;
(f) In our view, the right to life under Article 21 of the
Constitution of India would include the right of young
children to live with their mother and the right of a husband
to consortium with his wife; and State entities cannot be
permitted to deprive Nausheen's sons and husband of these
rights, merely by a stroke of the pen, in a manner that
smacks of authoritarianism, without authority of law and
without complying with basic tenets of natural justice and
without affording her an opportunity of hearing to answer
any matter alleged against her;
(g) While grant of a visa in the first instance may be a
matter of pure discretion with the authorities, curtailing the
liberty of residing in the country during the validity of an
LTV cannot be permitted except by a reasoned decision, as
has been held by the Supreme Court in Hasan Ali Raihany
(supra) and by a Division Bench of this court in Mohammad
Sediq (supra);
(h) If, as contended by the Ministry in affidavit dated
10.04.2019, it derives the power to regulate the entry, stay
and exit of a foreign national from India inter-alia from
Section 3 of the Foreigners Act 1946, then a fortiori such
power can never be untrammelled or unregulated since law
abhors absolutism and arbitrariness;
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(i) What is under consideration here is not Nausheen's 'right'
to stay in the country so much as the entitlement of the
Ministry to act with manifest arbitrariness in directing
Nausheen to leave the country in spite of a valid and
subsisting visa that she holds.
10.17. Placing reliance upon Mohd. Javed, learned
Senior Counsel reiterates that before directing a
person to leave the country, particularly one
who has entered lawfully and holds a valid visa,
the authority must furnish reasons and afford
an opportunity of hearing. He submits that the
right to travel and reside, though subject to
statutory regulation, is intertwined with the
broader protection of life and personal liberty
under Article 21 of the Constitution. In Mohd.
Javed, the Court considered the impact of
expulsion upon family life and recognised that
arbitrary executive action affecting residence
during the currency of a visa cannot be
sustained without due process.
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10.18. It is therefore argued that the power vested in
the FRRO under the Foreigners Act cannot be
exercised in an unguided, uncanalised or
untrammelled manner. According to the
petitioner, the statute does not confer absolute
authority to virtually cancel a visa issued by the
High Commission through the mechanism of a
Leave India Notice. The absence of a prior
show-cause notice to the petitioner before
issuance of the LIN is emphasised. It is
contended that the subsequent issuance of a
show-cause notice to the company, after the
LIN had already been issued, cannot cure the
initial procedural defect or validate what is
described as a predetermined action.
10.19. On this basis, learned Senior Counsel submits
that the impugned Leave India Notice is vitiated
for want of reasons, violation of natural justice,
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and arbitrary exercise of statutory power, and
therefore deserves to be quashed.
10.20. The notices which have been issued to the
company are different from that to be issued to
the petitioner to whom the LIN has been
issued. In this regard, he relies upon the
decision of the Hon'ble Apex Court in Canara
Bank v. Debasis Das3, more particularly
paras 15, 16 and 19 thereof, which are
reproduced hereunder for easy reference:
15. The adherence to principles of natural justice as
recognized by all civilized States is of supreme importance
when a quasi-judicial body embarks on determining
disputes between the parties, or any administrative action
involving civil consequences is in issue. These principles are
well settled. The first and foremost principle is what is
commonly known as audi alteram partem rule. It says that
no one should be condemned unheard. Notice is the first
limb of this principle. It must be precise and unambiguous.
It should apprise the party determinatively of the case he
has to meet. Time given for the purpose should be
adequate so as to enable him to make his representation.
In the absence of a notice of the kind and such reasonable
opportunity, the order passed becomes wholly vitiated.
Thus, it is but essential that a party should be put on notice
of the case before any adverse order is passed against him.
This is one of the most important principles of natural
justice. It is after all an approved rule of fair play. The
concept has gained significance and shades with time.
When the historic document was made at Runnymede in
1215, the first statutory recognition of this principle found
3
(2003) 4 SCC 557
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its way into the "Magna Carta". The classic exposition of Sir
Edward Coke of natural justice requires to "vocate,
interrogate and adjudicate". In the celebrated case of
Cooper v. Wandsworth Board of Works [(1863) 143 ER 414
: 14 CBNS 180 : (1861-73) All ER Rep Ext 1554] the
principle was thus stated : (ER p. 420)
"[E]ven God himself did not pass sentence upon Adam
before he was called upon to make his defence. 'Adam'
(says God), 'where art thou? Hast thou not eaten of the
tree whereof, I commanded thee that thou shouldest not
eat?' "
Since then the principle has been chiselled, honed and
refined, enriching its content. Judicial treatment has added
light and luminosity to the concept, like polishing of a
diamond.
16. Principles of natural justice are those rules which have
been laid down by the courts as being the minimum
protection of the rights of the individual against the
arbitrary procedure that may be adopted by a judicial,
quasi-judicial and administrative authority while making an
order affecting those rights. These rules are intended to
prevent such authority from doing injustice.
19. Concept of natural justice has undergone a great deal
of change in recent years. Rules of natural justice are not
rules embodied always expressly in a statute or in rules
framed thereunder. They may be implied from the nature
of the duty to be performed under a statute. What
particular rule of natural justice should be implied and what
its context should be in a given case must depend to a
great extent on the facts and circumstances of that case,
the framework of the statute under which the enquiry is
held. The old distinction between a judicial act and an
administrative act has withered away. Even an
administrative order which involves civil consequences
must be consistent with the rules of natural justice. The
expression "civil consequences" encompasses infraction of
not merely property or personal rights but of civil liberties,
material deprivations and non-pecuniary damages. In its
wide umbrella comes everything that affects a citizen in his
civil life.
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10.21. By relying on Debasis Das he submits that the
doctrine of audi alteram partem, has been
elaborated by holding that notice is the
foundational limb of natural justice. Such notice
must be precise, unambiguous and
determinative of the case that the affected
party is required to meet. Adequate time must
be afforded to enable representation. In the
absence of proper notice and opportunity, any
adverse order stands vitiated.
10.22. Learned Senior Counsel also refers to the
observations of the Hon'ble Supreme Court that
natural justice is not confined to judicial
proceedings alone but extends to administrative
actions having civil consequences. The
expression "civil consequences" has been
interpreted expansively to include infraction of
civil liberties, material deprivation and even
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non-pecuniary injury affecting a person's civil
life.
10.23. Placing reliance upon the aforesaid principles,
learned Senior Counsel submits that the
issuance of a Leave India Notice unquestionably
entails civil consequences. It affects the
petitioner's right to reside in the country during
the currency of a valid visa, disrupts his
employment, and impacts his personal and
professional standing. Such action, even if
characterised as administrative, must conform
to the minimum standards of fairness
mandated by natural justice.
10.24. It is contended that no notice was issued to the
petitioner prior to the issuance of the Leave
India Notice. No opportunity was granted to
him to explain his position or rebut the
allegations underlying the impugned action.
According to the petitioner, the subsequent
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show-cause notice issued to the employer
cannot cure the initial procedural defect nor
substitute the requirement of a personal
hearing where adverse civil consequences are
directed against him.
10.25. Learned Senior Counsel therefore submits that,
in view of the ratio laid down in Debasis Das,
the impugned Leave India Notice stands
vitiated for failure to comply with the
foundational requirement of notice and hearing
and is liable to be set aside on that ground
alone.
10.26. He relies upon the decision of the Hon'ble Apex
Court in CCE v. Brindavan Beverages (P)
Ltd4., more particularly para 14 thereof, which
is reproduced hereunder for easy reference:
14. There is no allegation of the respondents being
parties to any arrangement. In any event, no material
in that regard was placed on record. The show-cause
notice is the foundation on which the Department has
to build up its case. If the allegations in the show-
4
(2007) 5 SCC 388
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cause notice are not specific and are on the contrary
vague, lack details and/or unintelligible that is
sufficient to hold that the noticee was not given
proper opportunity to meet the allegations indicated
in the show-cause notice. In the instant case, what
the appellant has tried to highlight is the alleged
connection between the various concerns. That is not
sufficient to proceed against the respondents unless it
is shown that they were parties to the arrangements,
if any. As no sufficient material much less any
material has been placed on record to substantiate
the stand of the appellant, the conclusions of the
Commissioner as affirmed by cegat cannot be faulted.
10.27. By relying on Brindavan Beverages's case,
he submits that the Hon'ble Supreme Court in
the said decision has held that a show-cause
notice constitutes the very foundation of the
case sought to be built by the authority. If the
allegations in such notice are vague, lacking in
particulars, or unintelligible, the noticee cannot
be said to have been afforded a proper
opportunity to meet the case against him. The
Hon'ble Supreme Court held that in the absence
of specific allegations supported by material,
any consequential order would stand vitiated
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for failure to comply with principles of natural
justice.
10.28. He draws attention to the observation of the
Supreme Court that mere assertions or broad
allegations without substantive material are
insufficient to proceed against a party. The
notice must clearly set out the factual basis, the
nature of alleged contravention, and the role
attributed to the noticee so as to enable an
effective defence.
10.29. Relying on the aforesaid principles, learned
Senior Counsel submits that even the show-
cause notice issued in the present case suffers
from vagueness and absence of particulars. It is
contended that neither the petitioner nor the
company was clearly apprised of the specific
allegations that they were required to meet.
According to him, the notice merely makes
broad assertions regarding alleged violations of
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visa norms without detailing the factual
foundation or specifying the precise
misrepresentation alleged.
10.30. It is therefore submitted that in the absence of
a precise and intelligible notice, the petitioner
was deprived of a meaningful opportunity to
respond, rendering the subsequent action
unsustainable in law. On this ground as well, it
is urged that the impugned Leave India Notice
is liable to be set aside.
10.31. He relies upon the decision of the Hon'ble Apex
Court in Gorkha Security Services v. Govt.
(NCT of Delhi)5, more particularly paras 21
and 22 thereof, which are reproduced
hereunder for easy reference:
21. The central issue, however, pertains to the requirement
of stating the action which is proposed to be taken. The
fundamental purpose behind the serving of show-cause
notice is to make the noticee understand the precise case
set up against him which he has to meet. This would require
the statement of imputations detailing out the alleged
breaches and defaults he has committed, so that he gets an
opportunity to rebut the same. Another requirement,
5
2014, SCC Online, SC 599
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according to us, is the nature of action which is proposed to
be taken for such a breach. That should also be stated so
that the noticee is able to point out that proposed action is
not warranted in the given case, even if the
defaults/breaches complained of are not satisfactorily
explained. When it comes to blacklisting, this requirement
becomes all the more imperative, having regard to the fact
that it is harshest possible action.
22. The High Court has simply stated that the purpose of
show-cause notice is primarily to enable the noticee to meet
the grounds on which the action is proposed against him. No
doubt, the High Court is justified to this extent. However, it
is equally important to mention as to what would be the
consequence if the noticee does not satisfactorily meet the
grounds on which an action is proposed. To put it otherwise,
we are of the opinion that in order to fulfil the requirements
of principles of natural justice, a show-cause notice should
meet the following two requirements viz:
(i) The material/grounds to be stated which according to the
department necessitates an action;
(ii) Particular penalty/action which is proposed to be taken.
It is this second requirement which the High Court has failed
to omit.
We may hasten to add that even if it is not specifically
mentioned in the show-cause notice but it can clearly and
safely be discerned from the reading thereof, that would be
sufficient to meet this requirement.
10.32. By relying on Gorkha Security Services's
learned Senior Counsel submits that in the
present case the fundamental requirements of a
valid show-cause notice have not been
satisfied. It is contended that no notice was
issued to the petitioner prior to the issuance of
the Leave India Notice. The show-cause notice
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issued to the company, according to the
petitioner, does not clearly articulate the
specific imputations nor does it specify the
precise action proposed to be taken against the
petitioner.
10.33. It is therefore argued that the petitioner was
never apprised of the precise case he was
required to meet, nor was he informed of the
proposed adverse action so as to enable him to
demonstrate why such action ought not to be
taken. In the absence of compliance with the
dual requirements laid down in Gorkha
Security Services, the impugned Leave India
Notice, it is submitted, stands vitiated for
violation of principles of natural justice and is
liable to be quashed.
10.34. He relies upon the decision of the Hon'ble Apex
Court in the case of UMC Technologies (P)
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Ltd. v. Food Corpn. of India6, more
particularly paras 19, 20 and 24 thereof, which
are reproduced hereunder for easy reference:
19. In light of the above decisions, it is clear that a prior
show-cause notice granting a reasonable opportunity of
being heard is an essential element of all administrative
decision-making and particularly so in decisions pertaining
to blacklisting which entail grave consequences for the
entity being blacklisted. In these cases, furnishing of a valid
show-cause notice is critical and a failure to do so would be
fatal to any order of blacklisting pursuant thereto.
20. In the present case, the factum of service of the show-
cause notice dated 10-4-2018 by the Corporation upon the
appellant is not in dispute. Rather, what Shri Banerji has
argued on behalf of the appellant is that the contents of the
said show-cause notice were not such that the appellant
could have anticipated that an order of blacklisting was
being contemplated by the Corporation. Gorkha Security
Services [Gorkha Security Services v. State (NCT of Delhi),
(2014) 9 SCC 105] is a case where this Court had to decide
whether the action of blacklisting could have been taken
without specifically proposing/contemplating such an action
in the show-cause notice. For this purpose, this Court laid
down the below guidelines as to the contents of a show-
cause notice pursuant to which adverse action such as
blacklisting may be adopted : (SCC pp. 118-19, paras 21-
22)
"Contents of the show-cause notice
21. The central issue, however, pertains to the requirement
of stating the action which is proposed to be taken. The
fundamental purpose behind the serving of show-cause
notice is to make the noticee understand the precise case
set up against him which he has to meet. This would require
the statement of imputations detailing out the alleged
breaches and defaults he has committed, so that he gets an
opportunity to rebut the same. Another requirement,
according to us, is the nature of action which is proposed to
be taken for such a breach. That should also be stated so
that the noticee is able to point out that proposed action is
not warranted in the given case, even if the
6
(2021) 2 SCC 551
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defaults/breaches complained of are not satisfactorily
explained. When it comes to blacklisting, this requirement
becomes all the more imperative, having regard to the fact
that it is harshest possible action.
22. The High Court has simply stated [Gorkha Security
Services v. State (NCT of Delhi), 2013 SCC OnLine Del
4289] that the purpose of show-cause notice is primarily to
enable the noticee to meet the grounds on which the action
is proposed against him. No doubt, the High Court is
justified to this extent. However, it is equally important to
mention as to what would be the consequence if the noticee
does not satisfactorily meet the grounds on which an action
is proposed. To put it otherwise, we are of the opinion that
in order to fulfil the requirements of principles of natural
justice, a show-cause notice should meet the following two
requirements viz:
(i) The material/grounds to be stated which according to the
department necessitates an action;
(ii) Particular penalty/action which is proposed to be taken.
It is this second requirement which the High Court has failed
to omit.
We may hasten to add that even if it is not specifically
mentioned in the show-cause notice but it can clearly and
safely be discerned from the reading thereof, that would be
sufficient to meet this requirement."
24. A plain reading of the notice makes it clear that the
action of blacklisting was neither expressly proposed nor
could it have been inferred from the language employed by
the Corporation in its show-cause notice. After listing 12
clauses of the "Instruction to Bidders", which were part of
the Corporation's bid document dated 25-11-2016, the
notice merely contains a vague statement that in light of the
alleged leakage of question papers by the appellant, an
appropriate decision will be taken by the Corporation. In
fact, Clause 10 of the same Instruction to Bidders section of
the bid document, which the Corporation has argued to be
the source of its power to blacklist the appellant, is not even
mentioned in the show-cause notice. While the notice
clarified that the 12 clauses specified in the notice were only
indicative and not exhaustive, there was nothing in the
notice which could have given the appellant the impression
that the action of blacklisting was being proposed. This is
especially true since the appellant was under the belief that
the Corporation was not even empowered to take such an
action against it and since the only clause which mentioned
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blacklisting was not referred to by the Corporation in its
show-cause notice. While the following paragraphs deal with
whether or not the appellant's said belief was well-founded,
there can be no question that it was incumbent on the part
of the Corporation to clarify in the show-cause notice that it
intended to blacklist the appellant, so as to provide
adequate and meaningful opportunity to the appellant to
show cause against the same.
10.35. His submission is that the Hon'ble Supreme
Court in UMC Technologies, after referring to
Gorkha Security Services, held that a valid
show-cause notice must clearly indicate both (i)
the material or grounds necessitating action,
and (ii) the specific action or penalty proposed
to be taken. The Court emphasised that the
noticee must be placed in a position where he
can effectively rebut not only the allegations
but also the proportionality or justification of
the proposed action. A notice that merely refers
to alleged breaches without specifying the
nature of the contemplated penalty fails to
meet the requirements of natural justice.
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10.36. Absence of clarity regarding the proposed
action deprived the noticee of meaningful
opportunity and rendered the subsequent
blacklisting order unsustainable.
10.37. Placing reliance upon the aforesaid principles,
learned Senior Counsel submits that issuance of
a valid show-cause notice is not a mere
procedural formality but a substantive
safeguard inherent in fair administrative
process. In the present case, it is contended
that no show-cause notice was issued to the
petitioner prior to the issuance of the Leave
India Notice. Even the show-cause notice issued
to the company, it is argued, did not clearly set
out the specific action proposed to be taken
against the petitioner, nor did it indicate that
expulsion was contemplated.
10.38. It is therefore submitted that the impugned
Leave India Notice, having been issued without
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compliance with the minimum procedural
requirements articulated by the Hon'ble
Supreme Court in UMC Technologies, stands
vitiated. Learned Senior Counsel reiterates that
the decision to direct the petitioner to leave
India was taken arbitrarily, without adherence
to due process and without affording the
procedural safeguards guaranteed under law.
10.39. On this ground as well, it is urged that the
Leave India Notice is liable to be quashed.
10.40. Learned Senior Counsel submits that the
issuance of the Leave India Notice carries with
it a lasting stigma that extends beyond the
immediate regulatory consequence. It is
contended that even if the petitioner has since
exited India and the Employment Visa has
expired, the existence of the LIN remains part
of his immigration history. In future visa
applications to various countries, the petitioner
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may be required to disclose whether he has
ever been directed to leave any country. Being
duty-bound to answer truthfully, the petitioner
would be compelled to disclose the issuance of
the LIN. Such disclosure, it is argued, may
adversely influence decisions of foreign
immigration authorities and potentially result in
denial of visas, thereby impacting his
professional trajectory and personal mobility.
10.41. It is further submitted that the LIN was issued
without due process and allegedly on the basis
of an unverified and motivated complaint made
by a disgruntled former employee of the
company. According to the petitioner, the
issuance of the LIN, without prior notice and
without adjudication of the allegations, has
already affected his professional reputation.
The continuing existence of the LIN, it is urged,
compounds that injury and may prejudice his
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prospects in other jurisdictions where
immigration authorities may take note of such
regulatory history.
10.42. Learned Senior Counsel also refers to Rule 5 of
the Passport (Entry into India) Rules, 1950,
submitting that the essential requirements for
lawful entry into India are possession of a valid
passport and a valid visa. The petitioner, it is
contended, satisfied both requirements at the
time of entry. The Employment Visa having
been granted by the competent authority at the
High Commission of India in Canberra, and
there being no formal cancellation thereof by
the issuing authority at the relevant time, the
FRRO could not, by issuance of a Leave India
Notice, effectively nullify or overriding the visa
while it remained valid. If there was an
allegation that the visa had been procured by
fraud, it is argued, such determination ought to
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have been undertaken by the visa-issuing
authority and not by the FRRO.
10.43. Reiterating the submission regarding
institutional competence, learned Senior
Counsel contends that the High Commission of
India at Canberra, after examining all
documents including the justification letter,
employment terms, and the representation
regarding non-availability of suitable Indian
candidates, granted the Employment Visa upon
being satisfied of compliance with applicable
norms. The FRRO, it is urged, cannot now
overreach or sit in appeal over the satisfaction
recorded by the High Commission.
10.44. It is further submitted that even subsequent to
the issuance of the LIN, the petitioner applied
for and was granted fresh visas to enter India.
According to the petitioner, this conduct of the
Respondents themselves demonstrates that he
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has not engaged in any activity rendering him
undesirable or persona non grata. In such
circumstances, it is argued, the continuance of
the LIN in official records serves no regulatory
purpose and merely perpetuates stigma without
justification.
10.45. His vehement submission is that the FRRO does
not have the jurisdiction to issue a LIN under
any statute or notification. In this regard, he
refers to Section 3 of the Foreigners Act, 1946,
which is reproduced hereunder for easy
reference:
3. Power to make orders.--
(1)The Central Government may by order make
provision, either generally or with respect to all
foreigners or with respect to any particular foreigner
or any prescribed class or description of foreigner, for
prohibiting, regulating or restricting the entry of
foreigners into [India] or their departure therefrom or
their presence or continued presence therein.
(2)In particular and without prejudice to the
generality of the foregoing power, orders made under
this section may provide that the foreigner--
(a)shall not enter [India] or shall enter [India] only at
such times and by such route and at such port or
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place and subject to the observance of such
conditions on arrival as may be prescribed;
(b)shall not depart from [India], or shall depart only
at such times and by such route and from such port
or place and subject to the observance of such
conditions on departure as may be prescribed;
(c)shall not remain in [India] or in any prescribed
areas therein; [(cc) shall, if he has been required by
order under this section not to remain in India, meet
from any resources at his disposal the cost of his
removal from India and of his maintenance therein
pending such removal;]
(d)shall remove himself to, and remain in, such area
in [India] as may be prescribed;
(e)shall comply with such conditions as may be
prescribed or specified--
(i)requiring him to reside in a particular place;
(ii)imposing any restrictions on his movements;
(iii)requiring him to furnish such proof of his identity
and to report such particulars to such authority in
such manner and at such time and place as may be
prescribed or specified;
(iv)requiring him to allow his photograph and finger
impressions to be taken and to furnish specimens of
his handwriting and signature to such authority and at
such time and place as may be prescribed or
specified;
(v)requiring him to submit himself to such medical
examination by such authority and at such time and
place as may be prescribed or specified;
(vi)prohibiting him from association with persons of a
prescribed or specified description;
(vii)prohibiting him from engaging in activities of a
prescribed or specified description;
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(viii)prohibiting him from using or possessing
prescribed or specified articles;
(ix)otherwise regulating his conduct in any such
particular as may be prescribed or specified;
(f)shall enter into a bond with or without sureties for
the due observance of, or as an alternative to the
enforcement of, any or all prescribed or specified
restrictions or conditions;
(g) shall be arrested and detained or confined;]and
may make provision [for any matter which is to be or
may be prescribed and] for such incidental and
supplementary matters as may, in the opinion of the
Central Government, be expedient or necessary for
giving effect to this Act.
(3) Any authority prescribed in this behalf may with
respect to any particular foreigner make orders under
clause (e) 5 [or clause (f)] of sub-section (2).]
[3A. Power to exempt citizens of Commonwealth
Countries and other persons from application of Act in
certain cases.--(1) The Central Government may, by
order, declare that all or any of the provisions of this
Act or of any order made thereunder shall not apply,
or shall apply only in such circumstances or with such
exceptions or modifications or subject to such
conditions as may be specified in the order, to or in
relation to--
(a)the citizens of any such Commonwealth Country as
may be so specified; or
(b)any other individual foreigner or class or
description of foreigner.
(2)A copy of every order made under this section
shall be placed on the table of both Houses of
Parliament as soon as may be after it is made.]
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10.46. By referring to Section 3, he submits that the
said provision empowers the Central
Government to make orders regarding the
entry, presence and departure of foreigners in
India.
10.47. In terms of clause (c) of subsection (2) of
Section 3, an order directing the person not to
remain in India or in a prescribed area therein
could be passed. Thus, it is only the Central
Government which would pass such an order
and not the FRRO is his submission.
10.48. He refers to Section 12 of the Foreigners Act,
1946, relating to the delegation of powers, and
he submits that any authority upon which a
power is conferred by the Act can authorise in
writing any subordinate authority to exercise
such power on its behalf. The delegation
contemplated is only a one-step delegation
from the Central Government and not for the
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delegatee to further delegate to another
subordinate authority, namely the FRRO.
10.49. It is only the Central Government that can
delegate its powers under Clause (c) of
Subsection (2) of Section 3, and not for the
delegatee to further delegate. In the present
case, the delegatee being the Joint Director
(Bureau of Immigration), it is only the said
Joint Director who could exercise powers under
Clause (c) of Subsection (2) of Section 3. By
referring to the notification dated 13.07.2000,
he submits that the authorisation is only in
favour of the Joint Director of Immigration.
Even the exercise of the powers by the Joint
Director is subject to compliance with any
general or specific conditions issued by the
Central Government. Such exercise of powers
has to be done in a proper manner by following
the applicable procedure.
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10.50. The Joint Director not being authorised to
delegate his powers, the respondents cannot
contend that there is a delegation of such
powers by the Joint Director (Immigration), in
favour of the FRRO.
10.51. By referring to Section 3 of the Registration of
Foreigners Rules, 1992, he submits that the
powers of a registration officer would include
the power to authorise the performance of any
functions under the rules with the approval of
the Central Government. His submission is that
the Foreigners Act empowers the Central
Government to regulate the presence of
foreigners in India, including by directing their
removal under Section 3. In furtherance of
this, Section 12 permits the Central
Government to delegate to a subordinate
authority. In the present case, there is no such
delegation to the FRRO. The delegation, in
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terms of notification dated 13.7.2000, is only to
the Joint Director (Immigration), and it is only
the Joint Director (Immigration), who could
have exercised such powers.
10.52. The FRRO, having exercised powers under the
Foreigners Act 1946, and the notification dated
13.7.2000 is not authorised or empowered to
issue a LIN as done by the FRRO. Insofar as
the alleged sub-delegation by the Joint Director
in favour of the FRRO, his submission is that
Firsty, such delegation could not be made, since
such sub-delegation is not contemplated.
Secondly, the submission is that even the so-
called delegation has not been published and is
not known to the world as such.
10.53. At the most, it can be said to be an internal
office note which cannot be considered as a
valid delegation dehors a gazette notification
which has not been issued. His further
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submission is that the said delegation is not
published and there is no date stamp, and as
such, doubts the veracity and validity of the so-
called delegation.
10.54. He relies upon the decision of the Hon'ble Apex
Court in Harla vs. State of Rajasthan7, more
particularly Para 9 thereof, which is reproduced
hereunder for reference:
9. Natural justice requires that before a law can become
operative it must be promulgated or published. It must be
broadcast in some recognisable way so that all men may
know what it is; or, at the very least, there must be some
special rule or regulation or customary channel by or
through which such knowledge can be acquired with the
exercise of due and reasonable diligence. The thought that a
decision reached in the secret recesses of a chamber to
which the public have no access and to which even their
accredited representatives have no access and of which they
can normally know nothing, can nevertheless affect their
lives, liberty and property by the mere passing of a
resolution without anything more is abhorrent to civilised
man. It shocks his conscience. In the absence therefore of
any law, rule, regulation or custom, we hold that a law
cannot come into being in this way. Promulgation or
publication of some reasonable sort is essential.
10.55. By referring to Harla's case, his submission is
that before a law can become operative, it must
be promulgated or published, that is to say, it
7
1951, SCC 936
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must be broadcast in some reasonable way so
that all men may know what it is, so as to
exercise due and reasonable diligence. Any
decision which is reached in the secret recesses
to which the public has no access cannot bind
the general public.
10.56. He relies upon the decision of the Hon'ble Apex
Court in I.T.C. Bhadrachalam Paperboards
v. Mandal Revenue Officer8, more
particularly Para 13 thereof, which is
reproduced hereunder for easy reference:
13. The first question we have to answer is whether the
publication of the exemption notification in the Andhra
Pradesh Gazette, as required by Section 11(1) of the Act, is
mandatory or merely directory? Section 11(1) requires that
an order made thereunder should be (i) published in the
Andhra Pradesh Gazette and (ii) must set out the grounds
for granting the exemption. The exemption may be on a
permanent basis or for a specified period and shall be
subject to such restrictions or conditions as the Government
may deem necessary. Shri Sorabjee's contention is that
while the requirements that the power under Section 11
should be expressed through an order, that it must contain
the grounds for granting exemption and that the order
should specify whether the exemption is on a permanent
basis or for a specified period are mandatory, the
requirement of publication in the Gazette is not. According
to the learned counsel, the said requirement is merely
directory. It is enough, says the counsel, if due publicity is
given to the order. He relies upon certain decisions to which
8
(1996) 6 SCC 634
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we shall presently refer. We find it difficult to agree. The
power under Section 11 is in the nature of conditional
legislation, as would be explained later. The object of
publication in the Gazette is not merely to give information
to public. Official Gazette, as the very name indicates, is an
official document. It is published under the authority of the
Government. Publication of an order or rule in the Gazette is
the official confirmation of the making of such an order or
rule. The version as printed in the Gazette is final. The same
order or rule may also be published in the newspapers or
may be broadcast by radio or television. If a question arises
when was a particular order or rule made, it is the date of
Gazette publication that is relevant and not the date of
publication in a newspaper or in the media (See Pankaj Jain
Agencies v. Union of India [(1994) 5 SCC 198] ). In other
words, the publication of an order or rule is the official
irrefutable affirmation that a particular order or rule is
made, is made on a particular day (where the order or rule
takes effect from the date of its publication) and is made by
a particular authority; it is also the official version of the
order or rule. It is a common practice in courts to refer to
the Gazette whenever there is a doubt about the language
of, or punctuation in, an Act, Rule or Order. Section 83 of
the Evidence Act, 1872 says that the court shall presume
the genuineness of the Gazette. Court will take judicial
notice of what is published therein, unlike the publication in
a newspaper, which has to be proved as a fact as provided
in the Evidence Act. If a dispute arises with respect to the
precise language or contents of a rule or order, and if such
rule or order is not published in the Official Gazette, it would
become necessary to refer to the original itself, involving a
good amount of inconvenience, delay and unnecessary
controversies. It is for this reason that very often
enactments provide that Rules and/or Regulations and
certain type of orders made thereunder shall be published in
the Official Gazette. To call such a requirement as a
dispensable one -- directory requirement -- is, in our
opinion, unacceptable. Section 21 of the Andhra Pradesh
General Clauses Act says that even where an Act or Rule
provides merely for publication but does not say expressly
that it shall be published in the Official Gazette, it would be
deemed to have been duly made if it is published in the
Official Gazette [ Section 21 reads:"21. Publication of Orders
and Notifications in the Official Gazette.--Where in any Act
or in any rule passed under any Act, it is directed that any
order, notification or other matter shall be notified or
published, that notification or publication shall, unless the
Act otherwise provides, be deemed to be duly made if it is
published in the Official Gazette."] . As observed by Khanna,
J., speaking for himself and Shelat, J. in Sammbhu Nath Jha
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v. Kedar Prasad Sinha [(1972) 1 SCC 573 : 1972 SCC (Cri)
337] the requirement of publication in the Gazette (SCC p.
578, para 17) "is an imperative requirement and cannot be
dispensed with". The learned Judge was dealing with Section
3(1) of the Commissions of Inquiry Act, 1952 which
provides inter alia that a Commission of Inquiry shall be
appointed "by notification in the Official Gazette". The
learned Judge held that the said requirement is mandatory
and cannot be dispensed with. The learned Judge further
observed: (SCC p. 578, para 17)
"The commission of inquiry is appointed for the purpose of
making an inquiry into some matter of public importance.
The schedule containing the various allegations in the
present case was a part of the notification, dated 12-3-1968
and specified definite matters of public importance which
were to be inquired into by the Commission. As such, the
publication of the schedule in the Official Gazette should be
held to be in compliance with the statutory requirement. The
object of publication in an Official Gazette is twofold: to give
publicity to the notification and further to provide
authenticity to the contents of that notification in case some
dispute arises with regard to the contents."
10.57. By relying on ITC Bhadrachalam's case, his
submission is that the publication of sub-
delegation is mandatory, and if there is an
exemption claim, the reasons for such
exemption would have to be clearly and
categorically specified. The publication in the
Gazette not only provides information to the
general public but also makes it an official
document published under the authority of the
government.
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10.58. He relies upon the decision of the Hon'ble Apex
Court in the case of State of Maharashtra vs.
Mayer Hans George9 more particularly Para
34 thereof, which is reproduced hereunder for
easy reference:
34. Reverting now to the question whether mens
rea-in the sense of actual knowledge that the act
done by the accused was contrary to the law-is
requisite in respect of a contravention of S. 8(1),
starting with an initial prescription in favour of the
need for mens rea, we have to ascertain whether
the presumption is overborne by the language of the
enactment, read in the light of the objects and
purposes of the Act, and particularly whether the
enforcement of the law and the attainment of its
purpose would not be rendered futile in the event of
such an ingredient being considered necessary.
10.59. By referring to Mayer Hans George's case his
submission is that there is no purpose served
by the manner in which the law is sought to be
enforced, when the petitioner has been granted
a valid employment visa which was in force and
never cancelled.
9
(1965) 35 Comp Cas 557
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10.60. On the above basis, his submission is that the
Writ Petition is required to be allowed and the
relief/s sought for is/are to be granted.
11. Sri. Arvind Kamath, learned Additional Solicitor
General of India, appearing for the respondent,
submits that:
11.1. The present writ petition has wholly lost its
substratum. The Leave India Notice (LIN) dated
01.05.2019 was issued exclusively in relation to
the petitioner's Employment Visa (E-2), which
was valid only until 07.01.2020. The operation
of the LIN was necessarily coterminous with the
subsistence of that visa category. Upon the
petitioner's exit from India and the subsequent
expiry of the Employment Visa by efflux of
time, the LIN stood exhausted and became
functus officio. There is, therefore, no
subsisting order operating against the petitioner
that calls for adjudication.
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11.2. It is emphatically contended that the
Employment Visa was secured through
suppression and misrepresentation. The
company represented that no suitable Indian
national was available for the position of
General Manager. Subsequent material,
including admissions made during
correspondence, revealed that the foundational
representation was untenable. The issuance of
the LIN was therefore not arbitrary but a lawful
regulatory response to material irregularity. The
Respondents maintain that fraud vitiates the
foundation of any administrative grant.
11.3. An Employment Visa is conditional upon the
position being of a highly skilled or specialised
nature for which no qualified Indian candidate
is available. The petitioner's qualifications, a
Bachelor's degree in Nursing and a Graduate
Certificate in Critical Care Nursing, do not,
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according to the Respondents, justify
displacement of Indian managerial talent in a
general managerial role, there are innumerable
persons with the same qualifications in India.
India has no dearth of qualified and
experienced professionals in such fields. The
visa regime is not designed to facilitate
substitution of domestic managerial leadership
with expatriates without all conditions being
fulfilled.
11.4. The Employment Visa framework cannot be
exploited as a device to circumvent domestic
employment safeguards. The policy objective
underlying the visa regime is to preserve
employment opportunities for Indian citizens
while permitting foreign expertise strictly in
cases of genuine requirement. Any
interpretation diluting this principle would
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defeat the statutory and policy architecture
governing foreign employment.
11.5. The petitioner voluntarily exited India on
15.11.2019. Even though interim protection
had been granted by this Court, the petitioner
chose to leave. Upon such departure, the
directive contained in the LIN stood complied
with. The LIN was not a continuing restraint but
a direction not to remain in India under the
Employment Visa. Once the petitioner departed,
the LIN achieved its purpose and extinguished
itself. The underlying visa expired on
07.01.2020 and was never renewed.
Consequently, the LIN no longer has operative
force.
11.6. Significantly, neither the petitioner nor the
employer seek renewal of the Employment Visa
nor challenge the alleged visa irregularity
through re-application under the same
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category. Instead, the petitioner voluntarily
applied for a Business Visa, which was granted
from 10.01.2020 to 09.01.2021. This conduct
demonstrates conscious abandonment of the
Employment Visa category. The petitioner's own
actions reflect that he did not seek restoration
of employment-based residence. If any
employment activity were undertaken under
the guise of a Business Visa, appropriate action
would follow in accordance with law.
11.7. The record further demonstrates that the
petitioner travelled to India on the Business
Visa in January 2020 and later on a Tourist Visa
in May 2024. Both visas were granted by the
competent authorities of the Government of
India. These subsequent grants categorically
negate the allegation of blacklist, prohibition, or
continuing stigma within the Indian immigration
system.
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11.8. The petitioner, by voluntarily shifting visa
categories and entering India thereafter without
impediment, has waived any residual grievance
connected with the Employment Visa. The LIN
became inoperative upon expiry of that visa. A
spent administrative direction cannot be
resurrected for academic adjudication.
11.9. It is categorically affirmed that the LIN does not
constitute a permanent bar to future visa
applications, which is borne out by official
record and subsequent conduct of the
authorities. The Respondents have formally
clarified this position through written
communication dated 26.06.2025. The
petitioner has thereafter been granted further
visa permissions. The assertion of continuing
injury is therefore factually untenable.
11.10. The plea regarding adverse impact on foreign
visa applications was not part of the original
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writ petition. It has been raised for the first
time in the rejoinder filed in 2025, several
years after the initiation of proceedings. The
Respondents submit that a speculative
apprehension introduced belatedly cannot
revive a petition otherwise rendered
infructuous.
11.11. It is emphasised that the issuance or refusal of
visas by other sovereign nations lies entirely
outside the jurisdictional domain of this Court.
No material has been placed on record to
demonstrate that any foreign country has
denied the petitioner a visa on account of the
LIN. The alleged prejudice remains
hypothetical. Courts do not adjudicate upon
conjectural possibilities.
11.12. The Respondents categorically state that the
details of the LIN are not disseminated to
foreign governments or international databases.
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By official letter dated 26.06.2025 and further
clarification dated 04.11.2025, it has been
made clear that no further action is
contemplated pursuant to the LIN. These
communications were issued to bring finality
and to dispel apprehension.
11.13. The visa application forms produced by the
petitioner refer to removal or deportation. The
petitioner was not forcibly deported; he exited
voluntarily. The LIN directed him not to remain
under a particular visa category. The petitioner
cannot equate regulatory departure with
deportation so as to artificially construct a
continuing grievance
11.14. That the present petition seeks adjudication of
a spent administrative directive tied to an
expired visa category. The petitioner has re-
entered India under fresh visas. No operative
restraint exists. No continuing disability
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subsists. No concrete injury has been
demonstrated. The writ petition, having lost
both factual and legal substratum, deserves to
be dismissed as wholly infructuous.
11.15. He refers to the decision of the Hon'ble Apex
Court in the case of Minerva Mills Ltd., and
ors vs. Union of India10 more particularly,
Paras 36 and 37 thereof, which are reproduced
hereunder for easy reference:
36. Both the Attorney-General and the Additional Solicitor-
General have raised a preliminary objection to the
consideration of the question raised by the petitioners as
regards the validity of Sections 4 and 55 of the 42nd
Amendment. It is contended by them that the issue
formulated for consideration of the court: "Whether the
provisions of the Forty-second Amendment of the
Constitution which deprived the fundamental rights of their
supremacy and, inter alia, made them subordinate to the
directive principles of State policy are ultra vires the
amending power of Parliament? is too wide and academic. It
is urged that since it is the settled practice of the court not
to decide academic questions and since property rights
claimed by the petitioners under Articles 19(1) (f) and 31 do
not survive after the 44th Amendment, the court should not
entertain any argument on the points raised by the
petitioners.
37. In support of this submission reliance is placed by the
learned counsel on the decisions of the American Supreme
Court in Commonwealth of Massachusetts v. Andrew W.
Mellon, George Ashwander v. Tenneses Vally Authority, and
on WEAVER'S CONSTITUTIONAL LAW, 1946 Edition and
AMERICAN JURISPRUDENCES, Reliance is also placed on
10
(1980) 3 SCC 625
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certain decisions of this court to which it is unnecessary to
refer because the Attorney-General and the Additional
Solicitor-General are right that it is the settled practice this
Court to which it is unnecessary to refer because the
Attorney-General of this Court not to decide academic
questions. The American authorities on which the learned
counsel rely take the view that the constitutionality of a
statute will not be considered and determined by the courts
as a hypotheti-cal question, because constitutional questions
are not to be dealt with abstractly or in the manner of an
academic discussion. In other words, the courts do not
anticipate constitutional issues so as to assume in advance
that our Court has consistently taken the view that we will
not formulate a rule ment which may offend against the
provisions of the Constitution. Similarly, a certain law may
be passed in pursuance of a certain constitutional amend-of
constitutional law broader than is required by the precise
facts to which it is to be applied. It is only when the rights of
persons are directly involved that relief is granted by this
Court.
11.16. By relying on the decision in Minerva Mills
Limited's case, his submission is that the
Court is not required to address or decide
academic questions. It is only when the rights
of persons are directly involved that the matter
would be considered and relief granted by a
Court. All the contentions and apprehensions
on the part of the petitioner are hypothetical in
nature. The petitioner has not placed even one
document on record indicating that an
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application made by the petitioner has been
rejected on the ground that a LIN had been
issued by the respondent.
11.17. Learned ASGI submits, alternatively and
without prejudice, that even assuming any
foreign sovereign were to refuse a visa to the
petitioner in future, this Court would have no
territorial or subject-matter jurisdiction to
adjudicate upon such refusal. Decisions of
foreign immigration authorities are governed
exclusively by the domestic law of those
jurisdictions. The petitioner's legal rights within
India have not been adversely affected in any
continuing manner. On the contrary, the grant
of a Business Visa and thereafter a Tourist Visa
clearly demonstrates that the petitioner's travel
interests into India remain intact and
unhindered.
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11.18. It is therefore emphatically submitted that this
Court cannot pass directions, directly or
indirectly, regarding issuance or refusal of visas
by foreign countries. Any such relief would be
beyond the constitutional competence of this
Court.
11.19. On merits, learned ASGI submits that the
action of the Respondents was entirely justified.
The Employment Visa regime mandates that
such visas be granted only where the position
requires highly specialised skills unavailable in
India. The justification letter dated 14.12.2017,
though authored by the employer, was
submitted as part of the petitioner's visa
application. The petitioner derived direct benefit
from that representation. If that representation
is shown to be false or misleading, the
beneficiary cannot disclaim responsibility for its
consequences.
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11.20. Referring to the documentary requirements
accompanying an Employment Visa application,
learned ASGI submits that the employer is
required to furnish:
11.20.1. A categorical undertaking that the
applicant will be employed full-time;
11.20.2. An undertaking assuming responsibility
for the applicant's professional conduct;
11.20.3. A detailed justification letter explaining
why no Indian national can be employed
against the post;
11.20.4. Specific details of efforts made to
identify suitable Indian candidates.
11.21. These requirements are not a formality they
form the foundation for consideration of the
application. The justification must demonstrate
actual search and due diligence within India. In
the present case, the explanation furnished
later reveals that no such search was
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conducted. This constitutes a fundamental non-
compliance warranting revocation and
regulatory action.
11.22. The justification letter dated 14.12.2017
asserted that the petitioner possessed
experience unavailable in India and that no
individual with similar qualifications could be
found domestically. This categorical
representation formed the basis of visa
issuance.
11.23. The use of the expression "could not be found"
necessarily implied that a search had been
undertaken and that efforts had been made to
locate suitable Indian candidates. However,
subsequent correspondence revealed that no
such search was conducted. The employer later
admitted that there was no advertisement, no
recruitment exercise, and no attempt to identify
Indian candidates. The petitioner, in his visa
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application, had expressly declared that the
information furnished was true and complete
and that he understood that incorrect
information could result in denial of entry,
deportation or other penalties. He was
therefore fully aware of the legal consequences
of misrepresentation.
11.24. It was only after a complaint was received by
the Ministry of Home Affairs alleging
irregularities in visa procurement that an
enquiry was directed. Pursuant thereto, the
FRRO sought detailed clarification regarding
recruitment methodology, qualifications
required, advertisements issued, number of
applicants, and interview procedures. These
queries were not speculative; they were
grounded in regulatory duty.
11.25. The employer's response dated 25.07.2018
admitted that due to business urgency,
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candidates were selected from the Australian
office and no search was conducted within
India. No advertisements were issued; no
domestic recruitment process was undertaken.
This admission directly contradicted the earlier
justification. Selection from an internal
overseas office without even attempting
domestic recruitment cannot satisfy the
fundamental requirement of the non-availability
of Indian talent.
11.26. The contradiction between the original
justification and subsequent explanation
establishes misrepresentation. Had the latter
explanation, that no domestic search was
conducted, been disclosed in the justification
letter, the Employment Visa would not have
been granted. The misrepresentation therefore,
goes to the root of the visa's validity. The
issuance of the LIN was not arbitrary; it was a
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proportionate regulatory response to a
foundational defect.
11.27. Upon admission by the employer, a show-cause
notice was issued to the employer.
Simultaneously, the derivative beneficiary, the
petitioner, was issued a LIN. This was
consistent with the structure of an Employment
Visa, where the employee's status is dependent
upon the sponsor's compliance. The petitioner
had expressly accepted potential consequences
for incorrect information.
11.28. He submits that the FRRO acted with restraint
and proportionality. The authorities could have
initiated deportation proceedings. Instead, the
petitioner was permitted to exit voluntarily. His
family was not subjected to coercive measures.
The action taken was the least intrusive
response consistent with regulatory
enforcement.
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11.29. Even thereafter, the petitioner was granted
Business and Tourist Visas. This fact
demonstrates the absence of vindictiveness or
punitive intent. The action was confined to
rectifying a defective Employment Visa, not
imposing lasting disability.
11.30. On the issue of authority, learned ASGI submits
that the FRRO acted strictly within the statutory
framework. The FRRO sought directions from
the competent authority, namely the Joint
Director (Immigration), Bureau of Immigration,
Ministry of Home Affairs. The original file placed
before the Court evidences this hierarchical
decision-making process.
11.31. He refers to Notifications S.O. 3310(E) and S.O.
3311(E) dated 30.12.2009, whereby the FRRO,
Bangalore, was appointed as Civil Authority
under the Foreigners Act and Registration
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Officer under the Registration of Foreigners
Rules.
11.32. Further reliance is placed upon Gazette
Notification GSR 605(E) dated 13.07.2000
issued under Section 12 of the Foreigners Act,
authorising the Joint Director (Immigration) to
exercise powers under Section 3(2)(c). The LIN
was issued pursuant to such delegated
authority.
11.33. It is submitted that there was no impermissible
sub-delegation. The Joint Director, being the
statutory delegate of the Central Government,
directed issuance of the LIN. The FRRO merely
executed that direction in formal terms. The
issuing authority, in substance, was the Joint
Director acting within delegated competence.
11.34. On the question of natural justice, learned ASGI
submits that the alleged misrepresentation was
by the employer. The authorities corresponded
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extensively with the employer, sought
explanation, and considered the responses
before taking action. The principles of natural
justice were satisfied vis-à-vis the party
responsible for the representation. The
employee, whose visa status was derivative,
cannot demand a separate adjudication on
matters exclusively within the employer's
domain.
11.35. In so far as the decisions relied upon by the
learned senior counsel for the petitioner his
submission is that the decision in Hasan Ali
Raihanys' case would not be applicable
inasmuch as in that case the petitioner had
applied for seeking citizenship of India and
while the said application was pending, he was
sought to be deported and in that background,
the Hon'ble Apex Court had come to a
conclusion that without hearing the person who
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had applied for Indian citizenship, a deportation
order could not be passed. In the present case,
there being a misrepresentation by the
employer, which was a cause for issuance of the
employment visa, that decision would not be
applicable.
11.36. As regards the decision of the Hon'ble Delhi
High Court in Mohammed Javid's case, he
again submits that, that was also a case where
the petitioner had made an application for grant
of Indian citizenship, the petitioner being a
Pakistani national having married an Indian
national and in that background the Hon'ble
Delhi Court came to a conclusion that an
applicant for Indian citizenship was required to
be heard before issuance of a LIN, she having a
valid long-term visa. The submission is also
that the decision in Mohammed Javid's case
is now pending before the Hon'ble Supreme
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Court in SLP Nos.24092-24093/2019 and as
such, the said decision not having attained
finality, cannot be relied upon by the petitioner.
11.37. He relies upon the decision in Hans Muller of
Nurenburg v. State of W.B11., particularly
Paragraph 35 thereof which is reproduced
hereunder for easy reference:
35. Entries 9, 10, 17, 18 and 19 in the Union List confer
wide powers on the Centre to make laws about, among
other things, admission into and expulsion from India, about
extradition and aliens and about preventive detention
connected with foreign affairs. Therefore, the right to make
laws about the extradition or aliens and about their
expulsion from the land is expressly conferred; also, it is to
be observed that extradition and expulsion are contained in
separate entries indicating that though they may overlap in
certain aspects, they are different and distinct subjects. And
that brings us to the Foreigners Act which deals, among
other things, with expulsion, and the Extradition Act which
regulates extradition.
11.38. By relying on Hans Muller's case, it is
submitted that the said decision authoritatively
recognises the plenary sovereign power of the
State in matters relating to admission,
regulation and expulsion of foreigners.
11
(1955) 1 SCC 167
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11.39. The Hon'ble Supreme Court in Hans Muller
examined the constitutional scheme under the
Seventh Schedule and noted that Entries 9, 10,
17, 18 and 19 of the Union List confer wide and
exclusive legislative competence upon
Parliament in matters concerning admission into
India, expulsion, extradition, aliens and
preventive detention connected with foreign
affairs. The Court observed that extradition and
expulsion are distinct and separately
enumerated subjects, thereby emphasising that
the power to expel is not derivative or
incidental, but an independent and express
constitutional competence.
11.40. Learned ASGI submits that the Foreigners Act,
1946 is a direct legislative manifestation of this
sovereign authority. Section 3 of the Act
empowers the Central Government to regulate,
restrict, or direct that a foreigner shall not
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remain in India. The power of expulsion is not a
matter of concession but an incident of
sovereignty. A foreign national has no
fundamental right to reside or settle in India.
His presence in the country is conditional,
regulated by statute, and subject at all times to
executive supervision in accordance with law.
11.41. Relying upon Hans Muller, learned ASGI
submits that the executive discretion in matters
of expulsion is necessarily wide. Immigration
control is intimately connected with
sovereignty, national policy, labour regulation,
and public order. Courts have consistently
recognised that such matters fall within the
executive domain, subject only to limited
judicial review to ensure absence of mala fides,
arbitrariness, or statutory violation.
11.42. In the present case, it is contended that
irregularities in the procurement of the
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Employment Visa were established through
documentary admissions by the employer. Once
the foundational misrepresentation stood
revealed, the executive was well within its
statutory competence to direct that the
petitioner shall not remain in India under that
visa category. The power to expel includes the
lesser power to direct departure without
initiating coercive deportation proceedings.
11.43. Learned ASGI emphasises that the authorities
did not exercise the full rigour of deportation
powers. The petitioner was not forcibly
removed. He was permitted voluntary exit. His
family was not detained. No permanent
prohibition was imposed. Instead of invoking
the harshest available measure, the authorities
adopted a measured and proportionate course
by issuing a Leave India Notice, thereby
allowing compliance without coercion.
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11.44. It is submitted that when viewed through the
constitutional lens articulated in Hans Muller,
the impugned action represents a restrained
and calibrated exercise of sovereign power. The
petitioner, being a foreign national whose visa
was found to be tainted by misrepresentation,
cannot claim immunity from the regulatory
consequences contemplated under the
Foreigners Act.
11.45. Thus, learned ASGI contends that the issuance
of the LIN was not only within statutory
competence but also reflective of a
proportionate exercise of executive discretion in
a domain where the Constitution accords
primacy to sovereign authority.
11.46. On all the above basis, the submission of
learned ASGI is that the Writ Petition as filed is
required to be dismissed.
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12. Shri K.G. Raghavan learned senior counsel in
rejoinder, would submit that:
12.1. Learned Senior Counsel for the petitioner
submits that the reliance placed by the
Respondents upon Hans Muller is misplaced
and inapposite to the present controversy. It is
contended that the said decision was rendered
in the year 1955, at a constitutional moment
when the jurisprudence relating to personal
liberty, procedural fairness and international
human rights obligations had not yet evolved to
their present contours. The constitutional
interpretation prevailing at that time, it is
argued, was pre-Maneka Gandhi and pre-dates
the incorporation of modern standards of
fairness under Articles 14 and 21.
12.2. Learned counsel submits that the legal
landscape governing expulsion of foreign
nationals has undergone significant
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transformation since 1955. India is now a
signatory to the International Covenant on Civil
and Political Rights (ICCPR), which, inter alia,
mandates under Article 13 that an alien lawfully
present in the territory of a State Party shall
not be expelled except in pursuance of a
decision reached in accordance with law and
shall, save for compelling reasons of national
security, be allowed to submit reasons against
his expulsion and have his case reviewed by a
competent authority.
12.3. It is contended that India's accession to the
ICCPR imposes binding international obligations
to ensure procedural safeguards in matters of
expulsion. These safeguards include fairness,
transparency, and opportunity of
representation, except in narrowly defined
cases of national security. The petitioner
submits that the principles embodied in the
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ICCPR have informed the development of
domestic constitutional jurisprudence,
particularly post Maneka Gandhi, where the
Hon'ble Supreme Court expanded the meaning
of "procedure established by law" to require
that such procedure be just, fair and
reasonable.
12.4. According to the petitioner, the ratio in Hans
Muller must therefore be read in the historical
and constitutional context in which it was
delivered. The broad observations regarding
executive discretion in matters of expulsion
cannot, it is submitted, be understood as
conferring unfettered or unreviewable power in
the contemporary constitutional framework.
Executive action affecting personal liberty, even
of a foreign national, must now withstand
scrutiny under Articles 14 and 21 and conform
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to principles of non-arbitrariness and procedural
fairness.
12.5. It is further submitted that the present case
does not involve considerations of national
security or public order that might justify
curtailed procedural safeguards. The sole basis
for the impugned action is alleged irregularity in
procurement of the Employment Visa. In such
circumstances, reliance upon a 1955
articulation of sovereign power without
incorporating the subsequent evolution of
constitutional and international law principles, it
is argued, would be inappropriate.
12.6. He therefore submits that Hans Muller cannot
be invoked as authority for the proposition that
expulsion power is unfettered or immune from
contemporary procedural safeguards. The
decision, it is urged, must yield to the modern
constitutional doctrine that even where the
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State possesses sovereign authority over
foreigners, the exercise of such authority must
conform to fair procedure and international
human rights commitments.
12.7. He relies upon the decision of the Hon'ble
Madras High Court in R.I. Jebaraj v. Union of
India12, more particularly Para 28 thereof,
which is reproduced hereunder for easy
reference:
28. As concluded above, if the order under challenge is in
the nature of an order of expulsion of a foreigner from
Indian soil, necessarily notice should have been given by the
Central Government to the foreigner to afford an
opportunity to him to make representation. The entire
argument of Mr. V.T. Gopalan, the learned Senior Counsel,
was under the premise that the impugned order is an order
of expulsion. But I am unable to subscribe to the said
contention. Admittedly, the petitioner's brother was not in
Indian soil and so, the impugned order cannot be construed
to be an order of expulsion at all. As rightly pointed out by
the respondents in the counter, the impugned order is only
an order banning the entry of the petitioner's brother into
India without reference to the Central Government.
Nowhere it has been held in any of the judgments cited
supra that before passing any order under Section 3 of the
Foreigners Act r/w Clause 3 of the Foreigners Order, 1948
such a notice should be given to the foreigner and he should
be afforded an opportunity of being heard before passing an
order prohibiting the entry of the foreigner. As held by the
Hon'ble Supreme Court in Hans Muller v. Supdt., Presidency
Jail, Calcutta's case (cited supra) for passing an order either
regulating or banning the entry of any foreigner into India, it
is the absolute and unfettered discretion of the Central
12
2009 SCC OnLine Mad 160
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Government. The said soverign power is unlimited and
unrestricted. The United Nations International Covenant on
Civil and Political Rights, 1966 does not speak of any such
opportunity to be given to any foreign national in respect of
prohibitory or regulatory orders. As I have already stated, in
Gilles Preifer v. The Union of India, Sarbananda Sonowal's
case and Hasan Ali Aihany's case, the Hon'ble Supreme
Court has held in clear terms that the soverign power of the
Central Government is absolute and has further held that
only in the matter of expulsion of a foreign national who has
already been allowed to be in Indian soil, in view of the
International Covenant 1966, such a notice and opportunity
should be given to him before expelling him. But in respect
of an order banning the entry of a national into India, the
Central Government need not state any reason as to why
such ban order is imposed on him and it need not give any
opportunity or notice to the foreign national. The
Constitution of India does not contain any provision obliging
the Central Government to issue notice affording an
opportunity. The right to life guaranteed under Article 21
which is available to any foreign national does not engulf
into its ambit a right to a foreign national to compel the
Central Government either to allow him to enter into India
or to afford an opportunity to make representation or to
state the reasons for such a ban. Therefore, the contention
of the learned Senior Counsel that the impugned order is
vitiated on the ground that the same came to be passed
without affording any opportunity to the petitioner deserves
only to be rejected.
12.8. By relying on Jebaraj's case, his submission is
that before an order of expulsion of a foreigner
from Indian soil is made, a necessary notice
should have been given by the Central
Government to the foreigner to afford an
opportunity for him to make a representation.
The decision in Hans Muller's case, having
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been considered by the Hon'ble Madras High
Court in Jebaraj's case, and reference having
been made to ICCPR, it is the decision in
Jebaraj's case which is required to be
considered by this Court.
12.9. He relies on the decision of the Hon'ble Delhi
High Court in Mohd. Javed v. Union of
India13, more particularly paras 28, 29, 33 and
41 thereof, which are reproduced hereunder for
easy reference:
28. From the juristic standpoint, what requires elucidation is
the exact nature of the 'right' that is under consideration.
Confusion appears to have arisen from the perception that
the 'right' being considered is Nausheen's 'right to live in
India', which it is contended, she has none since she is an
alien or foreigner. That is indeed true. What we are losing
sight of though, is the fact that Nausheen is not an illegal
immigrant and has not entered India clandestinely or
unlawfully but has been continually residing in India for the
last thirteen years on a valid visa, which has been renewed
by the authorities from time-to-time. What is under the lens
here is not Nausheen's right to reside in the country but the
Ministry's authority to revoke a valid and subsisting LTV
without following any process or procedure whatsoever and
without arriving at a reasoned decision based on a factual
matrix. It is not Nausheen's substantive right but her
procedural right to 'due process' or right to procedural due
process, as it is sometimes called, that is required to be
considered.
29. In this context, while we are clear that most of the Part
III rights under the Constitution, namely fundamental
13
2019 SCC OnLine Del 8741
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rights, are available only to citizens and not to foreigners,
however, as has been consistently held, on a bare perusal of
the constitutional provisions the rights enshrined in Articles
20, 21 and 22 of the Constitution are available even to non-
citizens or foreigners. While invocation of rights under
Articles 20 and 22 does not arise in the present case, the
right under Article 21, namely the right of a person not to
be "deprived of his life or personal liberty except according
to procedure established by law" does. Here also, we hasten
to add, it is not that Nausheen has been deprived of her life
or personal liberty, in the narrow and restricted sense, by
being asked to leave India but what is impacted is
Nausheen's 'right to life' in its expanded interpretation as
given by the courts, with several aspects of 'life' having
been read into Article 21 of the Constitution.
33. It is also a basic tenet of the rule of law, that no power
conferred upon any authority must be unguided,
uncanalized, untrammelled or absolute. Courts will
invariably frown upon unguided power, wherever it be
found; and the test would be vis-a-vis the authority upon
which power is conferred, regardless of the subject upon
which the power is exercised. That is to say, in the present
context, the Ministry cannot have absolute, unguided power,
regardless of whether the power be exercised over a citizen
or a foreigner. The question to ask therefore is, whether
there is any guidance or restraint on the power of the
Ministry to direct a foreigner to leave the country or is the
discretion unguided and absolute? The fact that the power is
exercised upon or against a foreigner is not the point. It is
the existence of unguided power in the hands of an
authority that is in issue. Providing a procedure for its
exercise is the basic minimum restraint on exercise of any
power. What, may we ask, is the procedure for exercise of
the Ministry's power to direct a foreigner on a valid and
subsisting visa, to leave the country. If no procedure is
discernible in the statute, a basic procedure must be read
into it. What was the procedure followed by the Ministry in
the present case before issuing the Notice to Nausheen?
Here we are not holding the Ministry to the standard of a
just, fair or reasonable procedure prescribed by law as per
the principles laid down inter alia in the case of Maneka
Gandhi v. Union of India, (1978) 1 SCC 248 which may not
be applicable to a case under the Foreigners Act or to
regulations or orders made thereunder; but did the Ministry
follow any procedure at all? We are afraid we are unable to
discern any procedure whatsoever having been followed
before the issuance of the Notice. The abrupt and
peremptory issuance of the Notice itself cannot, on any
parameters, be construed to be a procedure. A legal
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procedure must be a set of steps prescribed by law or read
into the law, involving and displaying assessment of a fact
situation, application of mind, leading to inferential action by
the authorities, that precedes such action; which, in case of
civil consequences, must also include due consideration of
the version or representation of the person who will be
visited with such consequences. The absence of any steps
cannot itself pass-off as procedure.
41. We are only too familiar with the vast scope and
expanse of rights protected under the overarching principles
of Article 21 of the Constitution as developed over the past
decades by court pronouncements. How then can the rights
of a family against arbitrary and capricious interference by
the State not be protected as part of the ever-growing
bundle of rights under Article 21? Drawing upon the
covenants contained in the ICCPR, we hold that the 'family',
being the natural and fundamental unit of society, is entitled
to protection of its integrity against arbitrary interference by
the State.
12.10. By relying on Mohammed Javid's case, his
submission is that when a person has entered
India lawfully under a valid visa, the right of
such a person has to be balanced with the right
of the authority of the ministry to revoke the
long-term visa by following a procedure and
arriving at a reasoned decision based on the
factual matrix. He distinguishes the right to be
in India from the procedural due process right
to be denied the right to live in India, even if
the petitioner did not have a right to live in
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India, that right cannot be deprived without the
procedural due process being followed by the
authorities.
12.11. He reiterates the decision of the Hon'ble Apex
Court in Hasan Ali's case and also places
reliance on the decision of the Hon'ble Apex
Court in Sarbananda Sonowal v. Union of
India14, more particularly para 75 thereof,
which is reproduced hereunder for easy
reference:
75. In Introduction to International Law by J.G. Starke (1st
Indian Reprint 1994) in Chapter 12 (p. 348), the law on the
points has been stated thus:
"Most States claim in legal theory to exclude all aliens at
will, affirming that such unqualified right is an essential
attribute of sovereign government. The courts of Great
Britain and the United States have laid it down that the right
to exclude aliens at will is an incident of territorial
sovereignty. Unless bound by an international treaty to the
contrary, States are not subject to a duty under
international law to admit aliens or any duty thereunder not
to expel them. Nor does international law impose any duty
as to the period of stay of an admitted alien."
Like the power to refuse admission this is regarded as an
incident of the State's territorial sovereignty. International
law does not prohibit the expulsion en masse of aliens. (p.
351). Reference has also been made to Article 13 of the
International Covenant of 1966 on Civil and Political Rights
which provides that an alien lawfully in the territory of a
State party to the Covenant may be expelled only pursuant
14
(2005) 5 SCC 665
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to a decision reached by law, and except where compelling
reasons of national security otherwise require, is to be
allowed to submit the reasons against his expulsion and to
have his case reviewed by and to be represented for the
purpose before the competent authority. It is important to
note that this Covenant of 1966 would apply provided an
alien is lawfully in India, namely, with valid passport, visa,
etc. and not to those who have entered illegally or
unlawfully. Similar view has been expressed in Oppenheim's
International Law (Ninth Edn. 1992 in paras 400, 401 and
413). The author has said that the reception of aliens is a
matter of discretion, and every State is by reason of its
territorial supremacy, competent to exclude aliens from the
whole or any part of its territory. In para 413 it is said that
the right of States to expel aliens is generally recognised. It
matters not whether the alien is only on a temporary visit,
or has settled down for professional business or any other
purposes in its territory, having established his domicile
there. A belligerent may consider it convenient to expel all
hostile nationals residing or temporarily staying within its
territory, although such a measure may be very harsh on
individual aliens, it is generally accepted that such expulsion
is justifiable. Having regard to Article 13 of the International
Covenant on Civil and Political Rights, 1966, an alien
lawfully in a State's territory may be expelled only in
pursuance of a decision reached in accordance with law.
12.12. By relying on Sarbananda Sonowal's case, he
again seeks to draw a distinction between a
person who has entered the country illegally or
unlawfully and a person who has entered legally
under a valid visa. He again reiterates that as
per the visa applications required to be filed
with the US Department of State, as also before
the consulate General of India in Australia, an
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applicant is required to make a disclosure as to
whether the applicant has been deported or
removed from the respective country and
insofar as the visa applications to United
Kingdom, New Zealand, Australia Japan and
Canada, the applicant is required to disclose
whether the applicant was asked to leave or
ordered to leave the country with a detailed
explanation. The LIN coming within the
mischief of being asked to leave or ordered to
leave, the petitioner is entitled to challenge the
LIN even after the expiry of the visa and or the
LIN having been rendered incapable of
enforcement.
12.13. As regards the letter dated 26.6.2025 issued by
the FRRO to the learned counsel for the
Respondent and the letter dated, 4.11.2025
issued by the FRRO to the petitioner, his
submission is that the operation of the LIN
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having been stayed by this Court by the order
dated 24.06.2019, it cannot be said that the
business and e-tourist visa was issued despite
the LIN being issued inasmuch as when the
business visa and e-tourist visa was issued, the
LIN had been stayed by this Court.
12.14. The visa, if any, filed by the petitioner with
other countries cannot be processed on the
basis of the assurance of the respondent that
there is a duty cast on the petitioner to disclose
the LIN having been issued.
12.15. He refers to the decision of the Hon'ble Apex
Court in M. Sudakar v. V. Manoharan15,
more particularly paras 15 and 16 thereof,
which are reproduced hereunder for easy
reference:
15. True it is that the learned Single Judge had observed
that the writ petition had become infructuous and still
proceeded to grant relief to the appellant. In our opinion,
the learned Single Judge may not be absolutely right in
observing that the writ petition had become infructuous as
the resolution debarring the appellant was still operative. In
15
(2011) 1 SCC 484
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our opinion a writ petition broadly speaking is held
infructuous when the relief sought for by the petitioner is
already granted or because of certain events, there may
not be necessity to decide the issue involved in the writ
petition. Here in the present case the resolution of the
governing body was still holding the field when the writ
petition was heard and in fact was to operate for a further
period, hence it cannot be said that the relief claimed by
the appellant had become infructuous. In any view of the
matter, as the effect of the order continued, the learned
Single Judge was right in moulding the relief. The act of the
appellant in removing a large number of members and
financial impropriety will not clothe the general body to
pass resolution debarring the appellant from holding the
post for 10 years, as no such power is conferred by the
bye-laws. The action being patently illegal, the learned
Single Judge could not have declined the relief taking into
account the alleged action.
16. As regards the decision of this Court in Krishna Rice
Mills [(1981) 4 SCC 148] relied on by Mr Sorabjee, the
same has no bearing in the facts and circumstances of the
case. In the said case the instruction issued by the
Government was challenged and when the matter was
taken up it was conceded by the State that the State
Government would withdraw the instruction. In view of the
aforesaid the High Court observed that the writ petition has
become infructuous and in that background this Court
observed that the High Court ought not to have gone into
the merit of the case. In the present case the resolution
debarring the appellant was and still in force and,
therefore, the learned Single Judge rightly went into its
validity. Hence, the judgment relied on in no way supports
the contention of the respondents.
12.16. By relying on M. Sudhakar's case, his
submission is that merely because the visa had
expired, the issuance of the LIN is not taken
away. The fact of the issuance of the LIN
continues to be true and valid. The petitioner,
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having left the country and subsequently
entered on the basis of other valid visas, the
disclosure of the said LIN being required to be
made by the petitioner, it cannot be said that
the writ petition has become infructuous.
12.17. He relies upon the decision of the Hon'ble Apex
Court in Union of India v. Narender Singh16,
more particularly para 5 and 6 thereof, which
are reproduced hereunder for easy reference:
5. The High Court's order is clearly indefensible. A writ
petition questioning the Tribunal's order on merits does not
become infructuous by giving effect to the Tribunal's order.
Merely because the order of reinstatement had been
implemented by the appellant, that did not render the writ
petition infructuous as has been observed by the High
Court. This position was clearly stated in Union of India v.
G.R. Prabhavalkar [(1973) 4 SCC 183 : 1973 SCC (L&S)
374] . In para 23 of the decision it was observed as follows :
(SCC p. 193)
"23. Mr Singhvi, learned counsel, then referred us to the
fact that after the judgment of the High Court the State
Government has passed an order on 19-3-1971, the effect
of which is to equate the Sales Tax Officers of the erstwhile
Madhya Pradesh State with the Sales Tax Officers, Grade
III, of Bombay. This order, in our opinion, has been passed
by the State Government only to comply with the directions
given by the High Court. It was made during a period when
the appeal against the judgment was pending in this Court.
The fact that the State Government took steps to comply
with the directions of the High Court cannot lead to the
inference that the appeal by the Union of India has become
infructuous."
16
(2005) 6 SCC 106
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6. The expression infructuous means ineffective,
unproductive and unfruitful. It is derived from the Latin
word "fructus" (fruit). By implementing an order, the
challenge to the validity of the order is not wiped out and is
not rendered redundant.
12.18. By relying on Narendra Singh's case, his
submission is that an order passed by a Court
or Tribunal, in this case by the FRRO, will not
become infructuous after the order is given
effect to. The right to challenge an order would
continue even after being given effect to, and
as a consequence thereof, the petitioner would
be entitled to restitution.
12.19. As regards the authority of the FRRO and the
delegation in favour of FRRO, he submits that
the FRRO in the impugned LIN has not
mentioned any direction issued by the
competent authority. Thus, the LIN can only be
presumed to have been issued by the FRRO in
its capacity as FRRO and not on the instruction
of the competent authority. The documents
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which have been shown to this Court have not
been made available to the petitioner, and as
such, those documents cannot be considered
for the purpose of passing an order against the
petitioner without a copy thereof having been
furnished to the petitioner.
12.20. The delegation is permitted only to the Joint
Director; the Joint Director is not permitted to
further delegate his powers to the FRRO. No
sub-delegation being provided, even if it were
to be accepted that there is sub-delegation, the
sub-delegation is not proper and valid. Be that
as it may, he again reiterates that the FRRO has
not, in the impugned LIN, mentioned anything
about the Joint Director having directed the
FRRO to issue the LIN.
12.21. He relies upon the decision in Amit Kumar
Sharma v. Union of India17, more particularly
17
(2023) 20 SCC 486
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paras 25, 26 thereof, which are reproduced
hereunder for easy reference:
25. The elementary principle of law is that all material
which is relied upon by either party in the course of a
judicial proceeding must be disclosed. Even if the
adjudicating authority does not rely on the material while
arriving at a finding, information that is relevant to the
dispute, which would with "reasonable probability"
influence the decision of the authority must be disclosed. A
one-sided submission of material which forms the subject-
matter of adjudication to the exclusion of the other party
causes a serious violation of natural justice. In the present
case, this has resulted in grave prejudice to officers whose
careers are directly affected as a consequence.
26. The non-disclosure of relevant material to the affected
party and its disclosure in a sealed cover to the
adjudicating authority (in this case AFT) sets a dangerous
precedent. The disclosure of relevant material to the
adjudicating authority in a sealed cover makes the process
of adjudication vague and opaque. The disclosure in a
sealed cover perpetuates two problems. Firstly, it denies
the aggrieved party their legal right to effectively challenge
an order since the adjudication of issues has proceeded on
the basis of unshared material provided in a sealed cover.
The adjudicating authority while relying on material
furnished in the sealed cover arrives at a finding which is
then effectively placed beyond the reach of challenge.
Secondly, it perpetuates a culture of opaqueness and
secrecy. It bestows absolute power in the hands of the
adjudicating authority. It also tilts the balance of power in a
litigation in favour of a dominant party which has control
over information. Most often than not this is the state. A
judicial order accompanied by reasons is the hallmark of
the justice system. It espouses the rule of law. However,
the sealed cover practice places the process by which the
decision is arrived beyond scrutiny. The sealed cover
procedure affects the functioning of the justice delivery
system both at an individual case-to-case level and at an
institutional level. However, this is not to say that all
information must be disclosed in the public. Illustratively,
sensitive information affecting the privacy of individuals
such as the identity of a sexual harassment victim cannot
be disclosed. The measure of non-disclosure of sensitive
information in exceptional circumstances must be
proportionate to the purpose that the non-disclosure seeks
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to serve. The exceptions should not, however, become the
norm.
12.22. By relying on Commander Amit Kumar
Sharma's case, his submission is that any
material relied upon by either party in the Court
in a judicial proceedings must be disclosed and
even if the adjudicating authority does not rely
on the material while arriving at a finding if the
possibility of the same influencing the decision,
there would be a serious violation of principles
of natural justice.
12.23. On all the above grounds, he submits that the
Petition is required to be allowed and the relief
sought for to be granted.
13. Heard Sri.K.G.Raghavan, learned senior counsel for
the Petitioner, Sri.K.Aravind Kamath, learned ASGI
for the Respondents. Perused papers.
14. The points that would arise for consideration are:
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i) Whether the Leave India Notice (LIN)
dated 01.05.2019 is vitiated for violation
of the principles of natural justice?
ii) Whether the issuance of a Leave India
Notice during the subsistence of a valid
and un-cancelled Employment Visa (E-2)
amounts to an impermissible indirect or de
facto cancellation of the visa?
iii) Does the Foreign Regional Registration
Officer (FRRO) possess statutory
jurisdiction to issue a Leave India Notice?
iv) Whether the power under Section 3(2)(c)
of the Foreigners Act, 1946, to direct a
foreigner "not to remain in India" vests
exclusively in the Central Government or
its duly authorised delegate?.
v) Whether an internal communication or
direction issued by the Joint Director
(Immigration) can constitute a lawful
delegation or authorisation under the
Foreigners Act?
vi) Whether the impugned LIN suffers from
arbitrariness and non-application of mind?
vii) Whether allegations of fraud or
misrepresentation in the procurement of
an Employment Visa can be acted upon by
the FRRO without prior adjudication by the
visa-issuing authority?
viii) Whether a show-cause notice issued to the
employer can satisfy the requirements of
natural justice, qua the employee against
whom the adverse civil consequence is
directed?
ix) Whether the writ petition has been
rendered infructuous or academic on
account of the petitioner's exit from India,
expiry of the Employment Visa, and
subsequent grant of business and tourist
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visas, or whether the impugned LIN
continues to have civil, reputational, or
legal consequences warranting judicial
review?
x) What order?
15. I answer the above points as folows:
16. Answer to Point No.1: Whether the Leave India
Notice (LIN) dated 01.05.2019 is vitiated for
violation of the principles of natural justice?
16.1. Sri K.G. Raghavan, learned Senior Advocate
appearing for the Petitioner, challenges the
impugned LIN primarily on the ground of
procedural impropriety and violation of the audi
alteram partem rule. He submits that the Leave
India Notice dated 01.05.2019 was served on
the Petitioner on 19.06.2019 without any prior
show-cause notice (SCN) or opportunity of
hearing afforded specifically to him. The
Petitioner was presented with a fait accompli
directing him to leave the country, without
being informed of the grounds for such
expulsion.
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16.2. It is the specific contention of the Petitioner
that there exists a vital distinction between a
foreigner who enters the country illegally and
one who enters lawfully on a valid visa. The
Petitioner entered India on a valid Employment
Visa (E-2) issued by the High Commission of
India at Canberra after due verification of his
documents, including the Justification Letter.
He subsequently registered with the FRRO and
held a valid Residential Permit. As a lawful
entrant, he is entitled to the protection of
Article 21 of the Constitution of India.
16.3. The learned Senior Counsel places heavy
reliance on the decision of the Hon'ble Supreme
Court in Hasan Ali Raihany v. Union of
India. He argues that in Hasan Ali, the
Hon'ble Supreme Court categorically held that a
foreigner who enters on a valid visa must be
informed of the reasons for deportation and
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given an opportunity to represent his case. The
only exception to this rule is the existence of
"compelling national security reasons." In the
present case, the Respondents have not
pleaded any threat to national security, and
therefore, the denial of a hearing is illegal and
violative of the procedural due process
mandated by Article 21.
16.4. Reliance is also placed on the decision of the
Hon'ble Delhi High Court in Mohd. Javed v.
Union of India, where a LIN issued to a
Pakistani national was quashed. The Hon'ble
Delhi Court held that the "procedure
established by law" under Article 21 applies to
foreigners, and arbitrary expulsion without
reasons violates this fundamental right. The
learned Senior Counsel contends that the
impugned LIN is cryptic, unreasoned, and
arbitrary.
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16.5. Furthermore, referencing Canara Bank v.
Debasis Das, it is argued that even
administrative orders entail civil consequences,
here, the stigma of expulsion, loss of
employment, and disruption of residence,
requiring strict adherence to natural justice.
Specifically, the Court in Canara Bank held
that notice is the first limb of natural justice
and must be precise and unambiguous.
16.6. Learned Senior Counsel also relied upon CCE v.
Brindavan Beverages (P) Ltd., to contend
that a show-cause notice is the foundation of
the department's case. If the allegations are
vague or lacking, the notice is vitiated. In the
present case, no notice was issued to the
Petitioner at all.
16.7. Further reliance was placed on Gorkha
Security Services v. Govt. (NCT of Delhi),
and UMC Technologies (P) Ltd. v. Food
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Corpn. of India, to submit that where an
action entails grave consequences like
blacklisting (or expulsion), a specific show-
cause notice proposing the exact penalty is
mandatory. The failure to issue such a notice
renders the subsequent order void.
16.8. He also cited R.I. Jebaraj v. Union of India,
wherein the Hon'ble Madras High Court
distinguished the power to ban entry from the
power to expel, holding that in cases of
expulsion of a foreigner already on Indian soil,
notice and opportunity are required, citing the
International Covenant on Civil and Political
Rights (ICCPR).
16.9. Sri K. Aravind Kamath, learned Additional
Solicitor General of India (ASGI), countered
these submissions by asserting the sovereign
nature of the power exercised under the
Foreigners Act, 1946.
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16.10. The Respondent contends that under Section 3
of the Foreigners Act, 1946, the Central
Government possesses absolute, unfettered,
and plenary discretion to expel a foreigner. This
power is an incident of territorial sovereignty
and is not subject to the strictures of natural
justice applicable to citizens.
16.11. The Respondent places strong reliance on the
Constitution Bench judgment of the Hon'ble
Supreme Court in Hans Muller of Nurenburg
v. Superintendent, Presidency Jail,
Calcutta. It is submitted that this judgment
unequivocally holds that the Foreigners Act
vests the government with unrestricted power
to expel aliens, and the Constitution does not
fetter this discretion. The fundamental right to
reside and settle in India under Article 19(1)(e)
is not available to foreigners.
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16.12. The learned ASGI distinguishes Hasan Ali
Raihany v. Union of India on the facts. He
submits that in Hasan Ali, the petitioner
therein had an application for Indian Citizenship
pending and had deep roots in the country
(born in India). The Hon'ble Supreme Court's
direction for a hearing was influenced by the
potential claim to citizenship and long-standing
residence, which is absent in the present case
where the Petitioner is a contractual employee
on a temporary visa.
16.13. Similarly, Mohd. Javed v. Union of India is
distinguished as it involved the family rights of
an Indian citizen (husband) and Indian children,
implicating Article 21 rights of the family unit.
The present Petitioner has no such family ties in
India.
16.14. The Respondent submits that the visa was
procured through fraud and material
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misrepresentation by the Employer (Company).
The Justification Letter dated 14.12.2017
claimed no Indian was available, but the
Company later admitted in July 2018 that no
advertisement was placed. The Respondent
argues that fraud vitiates all solemn acts. Since
the fraud was committed by the Employer, the
SCN was rightly issued to the Employer. The
Petitioner, being a beneficiary of this fraud,
cannot claim equitable relief or a separate
hearing. In cases of fraud, the principles of
natural justice are not required to be stretched
to the point of futility.
16.15. The primary question before this Court is
whether the principles of natural justice,
specifically the right to a pre-decisional hearing,
are absolute and mandatory in the context of
the expulsion of a foreign national holding an
employment visa, particularly when the validity
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of that visa is questioned on grounds of
misrepresentation.
16.16. It is settled constitutional law that while
foreigners in India enjoy the protection of
Article 21 (Right to Life and Personal Liberty)
and Article 14 (Equality before Law), they do
not possess the fundamental rights guaranteed
under Article 19, specifically the right to reside
and settle in any part of the territory of India
[Article 19(1)(e)].
16.17. The locus classicus on this subject is the
Constitution Bench decision of the Hon'ble
Supreme Court in Hans Muller of Nurenburg
v. Superintendent, Presidency Jail,
Calcutta. The Hon'ble Supreme Court
categorically held that the Foreigners Act
confers the power to expel foreigners from
India. It vests the Central Government with
absolute and unfettered discretion and, as there
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is no provision limiting this discretion, the
Constitution does not fetter this discretion.
16.18. The Hon'ble Supreme Court in Hans Muller
further elucidated that the government has the
right to refuse entry or order expulsion, and
this right is "absolute and unlimited". While the
Petitioner argues that the evolving
jurisprudence under Article 21 dilutes this
principle, Hans Muller remains the binding law
of the land regarding the sovereign power of
the State over aliens. The classification of
foreigners as a distinct class permissible under
Article 14 was also upheld in this judgment.
16.19. The Petitioner's reliance on Hasan Ali Raihany
v. Union of India is misplaced. A careful
reading of that judgment reveals a crucial
factual distinction. In Hasan Ali, the petitioner
was born in India to Iranian parents, had lived
in India for a substantial period, and most
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importantly, had an application for
naturalisation (citizenship) pending before the
authorities. The Hon'ble Supreme Court invoked
the principles of natural justice in that specific
context, reasoning that a person seeking
citizenship who has lived in the country for
decades cannot be summarily deported without
reasons, as it affects his potential claim to
citizenship.
16.20. Similarly, Mohd. Javed v. Union of India
involved a Pakistani national who was the
spouse of an Indian citizen and mother to two
Indian minor children. The Delhi High Court's
intervention was predicated on the "Right to
Family Life" and the derivative rights of the
Indian family members (husband and children)
under Article 21. The disruption of the family
unit was a central concern. The Petitioner also
cited R.I. Jebaraj v. Union of India, which
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again deals with the expulsion of a person who
had acquired foreign citizenship but had roots
in India.
16.21. In stark contrast, the Petitioner herein is a
contractual employee of a foreign multinational
subsidiary. He has no claim to Indian
citizenship, nor does his expulsion separate him
from an Indian family. His right to stay is purely
contingent upon the validity of his employment
visa.
16.22. The Respondent has placed substantial material
on record demonstrating that the "Justification
Letter" dated 14.12.2017 submitted by the
Company to obtain the Petitioner's visa
contained a material misrepresentation. The
letter claimed that "no individual with similar
experience and qualification could be found
within India. However, upon inquiry, the
Company admitted in July 2018 that "no
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advertisements were placed" and they "selected
employees from their existing Australian office".
16.23. This contradiction is fatal. The Employment Visa
regime is designed to protect the domestic
labor market. A declaration that no local talent
is available is a jurisdictional fact for the grant
of the visa. If this declaration is false, the visa
is void ab initio.
16.24. The legal maxim fraus omnia corrumpit (fraud
vitiates everything) applies. When a privilege is
obtained by fraud, the beneficiary cannot claim
a violation of natural justice when that privilege
is withdrawn. Natural justice is not a rigid
formula, If the undisputed facts (here, the
Employer's admission) point to only one
conclusion, the issuance of a notice would be a
"useless formality" theory. The Petitioner's
reliance on Canara Bank v. Debasis Das
regarding strict adherence to notice in
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administrative matters is distinguishable
because Debasis Das involved a disciplinary
proceeding against an employee where rights
were protected by service regulations. Here,
the Petitioner is a foreigner with no vested
statutory right to stay beyond the pleasure of
the Government.
16.25. Similarly, the reliance on Gorkha Security
Services and UMC Technologies regarding
blacklisting is inapposite. Expulsion is not
blacklisting. Expulsion is the removal of an
unauthorised person. The Petitioner was
unauthorised because the basis of his
authorisation (the Justification Letter) was
found to be false.
16.26. Since the misrepresentation was made by the
Employer, the FRRO correctly issued the Show
Cause Notice to the Employer on 04.06.2019.
The Employer was heard. The Petitioner, whose
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status is derivative of the Employer's
sponsorship, has no independent ground to
stand on once the sponsorship is found tainted.
To require a separate hearing for every
expatriate employee when the employer admits
to a systemic breach of recruitment norms
would burden the administration unreasonably
and is not required by law.
16.27. I answer Point No.1 by holding that the Leave
India Notice is NOT vitiated for violation of
principles of natural justice. The Petitioner, as a
foreign national on a contractual visa obtained
through misrepresentation, does not enjoy the
same degree of procedural protection as a
citizen or a long-term resident seeking
citizenship. The hearing afforded to the
Employer was sufficient compliance with
fairness, given the nature of the fraud.
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17. Answer to Point No.2: Whether the issuance of
a Leave India Notice during the subsistence of
a valid and un-cancelled Employment Visa (E-2)
amounts to an impermissible indirect or de
facto cancellation of the visa?
17.1. The Petitioner contends that the FRRO lacks the
power to cancel a visa granted by the High
Commission of India. It is urged that by issuing
the Leave India Notice (LIN) while the
Employment Visa (E-2) remained facially valid
until January 2020, the FRRO achieved an
indirect cancellation, thereby violating the
principle that what cannot be done directly
cannot be done indirectly.
17.2. Learned Senior Counsel submits that an
Employment Visa is a sovereign grant issued by
the Ministry of External Affairs through its
diplomatic mission. The FRRO, functioning
under the Ministry of Home Affairs, cannot
override that sovereign act. According to the
Petitioner, issuance of the LIN effectively
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terminated the visa without adherence to a
formal cancellation proceeding, thereby
depriving him of procedural safeguards.
17.3. Reliance is placed upon K.S. Rashid & Son v.
Income Tax Investigation Commission, to
contend that a statutory authority cannot
achieve indirectly what it lacks power to do
directly. It is argued that if the FRRO cannot
cancel the visa, it cannot neutralise it through
expulsion.
17.4. The Respondents, on the other hand, submit
that the power to issue a Leave India Notice
under Section 3(2)(c) of the Foreigners Act,
1946 is an independent statutory power,
distinct from the administrative act of visa
issuance, and that such statutory direction
overrides the subsisting visa.
17.5. Learned ASGI submits that a visa is merely an
initial permission to enter the country.
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Continued presence is governed by the
Foreigners Act, 1946. Section 3(2)(c) expressly
empowers the Central Government and its
delegates to direct that a foreigner shall not
remain in India. That power is not conditioned
upon prior cancellation of the visa
endorsement.
17.6. The Petitioner's submission, though at first
blush appears attractive, rests upon a
fundamental misconception of the statutory
scheme governing foreigners in India.
17.7. Section 3(2)(c) of the Foreigners Act authorises
the Central Government to make orders
directing that a foreigner "shall not remain in
India." This power is statutory in origin, flowing
directly from Parliamentary legislation; plenary
in nature, not conditioned upon cancellation of
a visa stamp; and overriding in character,
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inasmuch as it operates irrespective of
administrative permissions previously granted.
17.8. The Foreigners Act, 1946 constitutes a
comprehensive regulatory code concerning
entry, stay and departure of foreigners. The
power under Section 3(2)(c) is preventive and
regulatory, rooted in sovereign control over
territorial presence. The statute does not
prescribe cancellation of a visa as a
jurisdictional precondition to expulsion. To read
such a requirement into the provision would
amount to judicial legislation.
17.9. A visa is a conditional permission to enter. It
does not create a vested right to remain for the
entirety of its duration if statutory conditions
are breached or if public interest so demands.
Acceptance of the Petitioner's argument would
lead to an untenable situation where domestic
authorities would be rendered powerless to
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remove a foreigner who violates conditions or
becomes undesirable, unless and until a
diplomatic mission abroad formally cancels the
visa. Such a construction would render Section
3(2)(c) nugatory and must be rejected.
17.10. The Ministry of External Affairs and the Ministry
of Home Affairs are not competing sovereigns.
They are administrative departments of the
same Central Government. The grant of a visa
and the regulation of continued presence
operate within a coordinated sovereign
framework.
17.11. The reliance on K.S. Rashid & Son is
misplaced. That principle applies where an
authority lacking jurisdiction attempts to
accomplish indirectly what it cannot do directly.
In the present case, the FRRO does not purport
to cancel the visa. It exercises a distinct
statutory power of expulsion under Section
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3(2)(c). The legal source of authority is explicit.
The incidental consequence that the visa
becomes practically ineffective does not
transform a statutory expulsion into a
colourable cancellation.
17.12. It is settled that Article 19 protections are
confined to citizens. In Hans Muller of
Nuremberg v. Superintendent, Presidency
Jail, the Hon'ble Supreme Court held that a
foreigner cannot claim the freedoms
guaranteed under Article 19. The right to reside
and settle in India is therefore not
constitutionally available to a non-citizen.
17.13. Article 21, however, applies to "persons" and
therefore extends to foreigners. While Article 21
is applicable, a foreigner has no fundamental
right to reside in India. The power of expulsion
is inherent in sovereignty, subject to procedure
established by law.
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17.14. Post Maneka Gandhi v. Union of India, such
procedure must be fair, just and reasonable.
Executive action must therefore withstand
scrutiny under Articles 14 and 21.
17.15. Applying the proportionality doctrine articulated
in Modern Dental College v. State of
Madhya Pradesh and reaffirmed in K.S.
Puttaswamy v. Union of India, the
impugned action satisfies constitutional
scrutiny. The objective of regulating foreign
presence is legitimate. The direction to leave is
rationally connected to that objective. No less
restrictive measure would achieve removal
where continued stay is impermissible. The
impact is limited to termination of territorial
presence and does not entail penal
consequences. The balance clearly favours
sovereign regulatory interest.
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17.16. The contention regarding violation of natural
justice must be examined contextually.
Principles of audi alteram partem are flexible
and not rigid. In Maneka Gandhi, the Hon'ble
Supreme Court recognised that a pre-decisional
hearing is not an invariable constitutional
mandate in every context.
17.17. In matters of immigration control, closely
connected with sovereignty and public order,
Parliament has not prescribed a mandatory
adjudicatory hearing prior to issuance of an
order under Section 3(2)(c). In Hans Muller,
the Hon'ble Supreme Court did not read such a
requirement into the statute.
17.18. Where power is preventive and regulatory,
particularly concerning non-citizens, fairness
may be satisfied through contextual
safeguards, including availability of post-
decisional representation and judicial review
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under Article 226. The existence of
constitutional oversight serves as a significant
check against abuse.
17.19. The action must also withstand scrutiny under
Article 14. In Shayara Bano v. Union of
India, the Hon'ble Supreme Court recognised
"manifest arbitrariness" as a ground of
invalidation. Manifest arbitrariness denotes
capriciousness, irrationality, absence of
determining principle, or bad faith.
17.20. The Leave India Notice in the present case is
traceable to statutory authority, issued by a
competent delegate, and aligned with the
legislative scheme. There is no material
suggesting mala fides, discrimination, or
extraneous considerations. The action does not
cross the threshold of manifest arbitrariness.
17.21. Deportation is universally recognised as an
incident of national sovereignty. Visa
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permission does not confer an irrevocable right
to remain; it remains subordinate to statutory
power of removal.
17.22. Viewed cumulatively, under statutory
construction, constitutional doctrine,
proportionality analysis, contextual natural
justice, and Article 14 review, the Petitioner's
contention cannot be sustained.
17.23. The Leave India Notice is not an indirect
cancellation of the visa. It is a direct exercise of
statutory authority under Section 3(2)(c) of the
Foreigners Act, 1946. The visa does not create
an indefeasible right to remain immune from
that power. Articles 14 and 21 are not violated,
and Article 19 is inapplicable.
17.24. Accordingly, the issuance of the Leave India
Notice during the subsistence of the
Employment Visa does not amount to an
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impermissible indirect or de facto cancellation
of the visa.
17.25. I answer Point No.2 by holding that the
issuance of a Leave India Notice during the
subsistence of a visa does NOT amount to an
impermissible indirect cancellation. It is a
lawful, independent exercise of the power
under Section 3(2)(c) of the Foreigners Act,
1946, which overrides the permission granted
by the visa.
18. Answer to Point No.3: Does the Foreign
Regional Registration Officer (FRRO) possess
statutory jurisdiction to issue a Leave India
Notice?
18.1. The Petitioner argues that the FRRO has no
jurisdiction to issue the LIN as the Act vests
power in the "Central Government". They claim
there is no specific notification delegating this
power to the FRRO.
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18.2. Sri Raghavan argues that under Section 3 of
the Foreigners Act, the power to make orders is
vested in the Central Government. While
Section 12 allows delegation, such delegation
must be express and specific. The Petitioner
contends that no notification exists that
explicitly authorises the FRRO to issue an order
under Section 3(2)(c) to expel a foreigner
holding a valid visa.
18.3. The Respondent relies on Notification S.O.
3310(E) and others which designate the FRRO
as the "Civil Authority" and delegate powers
under Section 3.
18.4. The Respondent produced the relevant
notifications issued by the Ministry of Home
Affairs, specifically Notification S.O. 590(E) and
subsequent amendments, which appoint the
FRRO as the Civil Authority for the jurisdiction
of Bengaluru.
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18.5. The learned ASGI submits that as the Civil
Authority, the FRRO is empowered to regulate
the movement and stay of foreigners.
Furthermore, the specific direction in this case
came from the Joint Director (Immigration),
who holds delegated power from the Central
Government via GSR 605(E).
18.6. The FRRO is not merely a record-keeper. Under
the Foreigners Order, 1948, the "Civil
Authority" is vested with significant powers to
regulate the movement and stay of foreigners.
Paragraph 11 of the Foreigners Order
empowers the Civil Authority to direct a
foreigner to comply with conditions regarding
their place of residence and movements.
18.7. Furthermore, Section 12 of the Foreigners
Act authorizes the Central Government to
delegate its powers. By various notifications,
including S.O. 590 (E) and subsequent
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notifications defining the jurisdiction of FRROs,
the powers of the Central Government to
regulate the continued presence of foreigners
have been delegated to the FRROs.
18.8. Specifically, the Respondent has produced the
official file showing that the decision to issue
the LIN was processed through the Bureau of
Immigration (BoI), which is the apex
immigration body. The FRRO, as the regional
head of the BoI, exercises these delegated
powers. To suggest that the FRRO lacks
jurisdiction is to ignore the entire administrative
framework of immigration control in India. The
FRRO is the statutory authority on the ground
empowered to execute the orders of the Central
Government.
18.9. The Petitioner has mounted a jurisdictional
challenge to the issuance of the Leave India
Notice (LIN), contending that the Foreign
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Regional Registration Officer (FRRO) lacks
statutory competence to exercise the power
under Section 3(2)(c) of the Foreigners Act,
1946. It is urged that the power to make orders
under Section 3 is vested exclusively in the
"Central Government" and that any exercise of
such power by the FRRO must be supported by
a specific and express delegation. According to
the Petitioner, no notification has been
produced that explicitly authorises the FRRO to
direct a foreigner not to remain in India,
particularly in circumstances where the
foreigner holds a facially valid visa.
18.10. This contention requires careful examination of
the statutory framework, the scheme of
delegation under the Act, and the constitutional
doctrine governing delegated authority.
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18.11. The Foreigners Act, 1946 is a comprehensive
legislation enacted to regulate the entry,
presence, and departure of foreigners in India.
18.12. Section 3 is reproduced hereunder for easy
reference:
3. Power to make orders.-(1) The Central Government
may by order make provision, either generally or with
respect to all foreigners or with respect to any particular
foreigner or any prescribed class or description of foreigner
for prohibiting, regulating for restricting the entry of
foreigners into [India) or their departure therefrom or their
presence or continued presence therein
(2) In particular and without prejudice to the generality of
the foregoing power, orders made under this section may
provide that the foreigner-
(a) shall not enter [India), or shall enter (India) only at such
times and by such route and at such port or place and
subject to the observance of such conditions on arrival as
may be prescribed
(b) shall not depart from [India), or shall depart only at such
times and by such route and from such port or place and
subject to the observance of such conditions on departure as
may be prescribed,
(c) shall not remain in India), or in any prescribed area
therein,
(cc) shall, if he has been required by order under this section
not to remain in India, meet from any resources at his
disposal the cost of his removal from India and of his
maintenance therein pending such removal.
(d) shall remove himself to, and remain in, such area in
India) as may be prescribed
(e) shall comply with such conditions as may be prescribed
or specified-
(i) requiring him to reside in a particular places
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(ii) imposing any restrictions on his movements
(iii) requiring him to furnish such proof of his identity and to
report such particulars to such authority in such manner and
at time and place as may be prescribed or specified,
(iv) requiring him to allow his photograph and finger
impressions to be taken and to furnish specimens of his
handwriting and signature to such authority and at such time
and place as may be prescribed or specified;
(v) requiring him to submit himself to such medical
examination by such authority and at such time and place as
may be prescribed or specified
(vi) prohibiting him from association with persons of a
prescribed on specified description,
(vii) prohibiting him from engaging in activities of a
prescribed or specified description:
(viii) prohibiting him from using or possessing prescribed on
specified articles;
(ix) otherwise regulating his conduct in any such particular as
may be prescribed or specified;
(f) shall enter into a bond with or without sureties for the due
observance of or as an alternative to the enforcement of, any
or all prescribed or specified restrictions or conditions,
(g) shall be arrested and detained or confined
and may make provision for any matter which is to be or
may be prescribed and] for such incidental and
supplementary matters as may, in the opinion of the Central
Government, be expedient or necessary for giving effect to
this Act.
(3) Any authority prescribed in this behalf may with respect
to any particular foreigner make orders under clause (e) for
clause (fil of sub section (2).
18.13. Section 3 confers wide regulatory powers upon
the Central Government. Sub-section (2)
enumerates illustrative categories of orders that
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may be made, including, under clause (c), an
order that a foreigner "shall not remain in
India." The language of the provision is broad,
and its purpose is clear: to preserve sovereign
control over the territorial presence of non-
citizens.
18.14. However, the Act does not contemplate that the
Central Government must personally or directly
issue every individual order affecting a
foreigner. Recognising the practical necessity of
decentralised implementation, Parliament
enacted Section 12, which expressly authorises
the Central Government to direct, by
notification, that any power conferred by or
under the Act may be exercised by such officer
or authority as may be specified. Delegation is
therefore not incidental to the statutory
scheme; it is embedded within it as an essential
mechanism for operational enforcement.
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18.15. The Respondents have produced notifications
issued by the Ministry of Home Affairs,
including Notification S.O. 590(E), S.O.
3310(E), and subsequent amendments,
whereby the FRRO is appointed as the "Civil
Authority" for specified territorial jurisdictions,
including Bengaluru. These notifications are
issued in exercise of powers under Section 12
of the Act and operate in conjunction with the
Foreigners Order, 1948.
18.16. The Foreigners Order, 1948, issued under
Section 3, defines "Civil Authority" as such
authority as may be appointed by the Central
Government. The Order further confers upon
the Civil Authority substantive powers to
regulate movement, residence, reporting
obligations, and compliance with conditions
imposed upon foreigners. Paragraph 11
empowers the Civil Authority to issue directions
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concerning residence and movement, and to
ensure enforcement of statutory requirements.
18.17. The statutory structure is thus layered and
coherent:
18.17.1. Parliament confers substantive power
upon the Central Government under
Section 3.
18.17.2. Parliament expressly authorises
delegation under Section 12.
18.17.3. The Central Government, by notification,
appoints the Civil Authority for defined
jurisdictions.
18.17.4. The Foreigners Order, 1948
operationalises the role and authority of
such Civil Authority.
18.18. The FRRO, by virtue of the notifications on
record, functions as the Civil Authority within its
territorial domain. Its authority is neither
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implied nor assumed; it is expressly conferred
through statutory delegation.
18.19. The Petitioner's submission that the delegation
must specifically enumerate each sub-clause of
Section 3(2) is unsustainable. Delegation of
powers under Section 3, unless expressly
restricted, extends to the powers contained
therein. The notifications produced do not
impose any limitation curtailing the FRRO's
competence to exercise clause (c). Once the
power under Section 3 stands delegated, the
delegate may exercise it within the statutory
framework.
18.20. The records further reveal that the impugned
decision was processed through the Bureau of
Immigration (BoI), functioning under the
Ministry of Home Affairs. The FRRO operates as
the regional head within this administrative
hierarchy. The decision-making chain involved
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supervisory consideration at the level of the
Joint Director (Immigration), who exercises
authority under delegated notifications such as
GSR 605(E). This demonstrates that the
impugned action was not a unilateral or isolated
exercise but part of an integrated
administrative framework.
18.21. The challenge to jurisdiction must also be
examined against constitutional principles
governing delegation.
18.22. While essential legislative functions cannot be
abdicated, Parliament may delegate to the
executive the power to implement and
administer the legislative policy, provided that
the policy and guiding principles are clearly laid
down.
18.23. The Foreigners Act satisfies this constitutional
requirement. The legislative policy, regulation
of foreigners and preservation of sovereign
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control, is explicitly articulated. Section 3
enumerates the nature and scope of
permissible orders. Section 12 expressly
authorises delegation. The discretion conferred
is structured by statutory purpose and subject
to judicial review.
18.24. Delegation that is guided by legislative
standards and confined to execution of policy
would have to be upheld. The power exercised
by the FRRO under Section 3(2)(c) is executive
and administrative; it does not entail
formulation of new legislative norms but
enforcement of existing statutory commands.
18.25. Immigration control, by its very nature,
requires decentralised execution. The Central
Government cannot practically adjudicate every
individual case across the country. Delegation
to field-level authorities such as the FRRO is not
merely permissible; it is administratively
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indispensable. Such delegation remains subject
to statutory limits, executive supervision, and
constitutional review under Article 226.
18.26. The Petitioner's argument, if accepted, would
paralyse the statutory framework. It would
require the Central Government at the apex
level to personally issue every expulsion order,
defeating the legislative intent underlying
Section 12. Courts must construe statutes in a
manner that furthers, rather than frustrates,
legislative purpose.
18.27. Jurisdictional validity must ultimately be tested
on three planes:
18.27.1. Statutory Authority: Section 3 confers
the substantive power; Section 12
authorises delegation.
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18.27.2. Valid Delegation: Notifications appoint
the FRRO as Civil Authority for the
concerned jurisdiction.
18.27.3. Exercise Within Limits: The impugned
action was taken within territorial and
statutory bounds, under supervisory
administrative structure.
18.28. All three conditions are satisfied in the present
case.
18.29. The FRRO, acting as the delegated Civil
Authority under the Foreigners Act, 1946 and
the Foreigners Order, 1948, therefore
possesses statutory jurisdiction to issue a Leave
India Notice. The delegation is constitutionally
valid, statutorily authorised, administratively
structured, and subject to judicial control.
18.30. The impugned action thus cannot be invalidated
on the ground of lack of jurisdiction.
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18.31. I answer Point No.3 by holding that the Foreign
Regional Registration Officer (FRRO) possesses
the statutory jurisdiction to issue a Leave India
Notice, acting as the delegated Civil Authority
under the Foreigners Act, 1946, and the
Foreigners Order, 1948.
19. Answer to Point No. 4: Whether the power
under Section 3(2)(c) of the Foreigners Act,
1946, to direct a foreigner "not to remain in
India" vests exclusively in the Central
Government or its duly authorised delegate?.
and
Answer to Point No. 4:Whether an internal
communication or direction issued by the Joint
Director (Immigration) can constitute a lawful
delegation or authorisation under the
Foreigners Act?
19.1. The Petitioner contends that the delegation was
only to the Joint Director (Immigration) via
Notification GSR 605(E), and the Joint Director
could not "sub-delegate" this to the FRRO.
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19.2. It is submitted that the maxim delegatus non
potest delegare applies. If the Central
Government delegated the power of expulsion
to the Joint Director, the Joint Director must
exercise it personally. He cannot pass it down
to the FRRO.
19.3. Further, the instruction to issue the LIN was an
unpublished internal note. Relying on Harla v.
State of Rajasthan, the Petitioner argues that
secret orders or internal notes cannot have the
force of law to affect the rights of individuals.
The delegation must be published in the Official
Gazette to be valid.
19.4. Reliance is also placed on I.T.C.
Bhadrachalam Paperboards v. Mandal
Revenue Officer, to argue that where a
statute requires a particular mode of publication
(Gazette), non-compliance renders the order
void.
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19.5. The Respondent argues that the FRRO acted
under the direct instruction of the Joint
Director. This is not sub-delegation but
execution.
19.6. The learned ASGI clarifies that the decision was
taken by the Joint Director (Immigration) based
on the inquiry report. The Joint Director then
instructed the FRRO to issue the notice. This is
a standard administrative hierarchy where the
superior takes the decision and the subordinate
executes it.
19.7. Regarding Harla and ITC Bhadrachalam, the
Respondent submits that internal administrative
orders directing a subordinate to issue a notice
do not require gazetting. Only statutory rules
and notifications of general application require
publication.
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19.8. The Petitioner's argument suffers from a
confusion between "legislative delegation" and
"administrative execution".
19.8.1. Delegation: The Central Government
delegated power to the Joint Director
(BoI) via GSR 605(E). This is a valid
statutory delegation.
19.8.2. Execution: The Joint Director, having
taken the decision that the Petitioner
must leave, instructed the FRRO (his
subordinate officer) to issue the formal
notice. This is not delegatus non potest
delegare. It is the performance of a duty
through the machinery of the
department. The decision was taken by
the competent delegate (Joint
Director/MHA). The FRRO merely
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communicated and enforced that
decision.
19.9. The reliance on Harla v. State of Rajasthan is
legally untenable in this context. Harla dealt
with the non-publication of a penal statute
(Opium Act) which created general criminal
liability for the public. A law that creates
offences must be published.
19.10. Similarly, I.T.C. Bhadrachalam Paperboards
dealt with a power to grant tax exemptions
which required Gazette notification by the
explicit terms of the statute.
19.11. However, an internal file noting or an
administrative instruction from a superior
officer to a subordinate to issue a specific order
against a specific individual is not a law. It is an
executive instruction. There is no requirement
in the General Clauses Act or the Constitution
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that internal administrative hierarchies and
case-specific instructions be gazetted. The
"Law" (Foreigners Act) is published. The
"Order" (LIN) was served on the Petitioner. The
internal processing of that order is privileged
administrative business.
19.12. Section 3 of the Foreigners Act, 1946 vests
substantive power in the Central Government to
regulate the presence of foreigners. Section 12
expressly authorises delegation of that power.
Pursuant to statutory notifications, including
GSR 605(E), powers under Section 3 stand
delegated within the immigration hierarchy. The
Joint Director (Immigration), functioning within
the Bureau of Immigration under the Ministry of
Home Affairs, is one such delegate.
19.13. The question, however, is not whether there
was valid delegation from the Central
Government to the Joint Director, that position
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stands supported by notification, but whether
the act of the FRRO issuing the LIN pursuant to
instructions from the Joint Director constitutes
impermissible sub-delegation.
19.14. The records indicate that the decision that the
Petitioner ought not to remain in India was
taken at the level of the Joint Director
(Immigration) upon consideration of the inquiry
materials. The FRRO was thereafter instructed
to issue and serve the formal notice. The FRRO
did not independently assume the power to
expel; it acted within the administrative chain
to communicate and implement the decision
taken by the competent authority.
19.15. The maxim delegatus non potest delegare
applies where a delegate attempts to transfer
decision-making authority to another who is not
authorised by statute. It does not prohibit
performance of ministerial or procedural acts
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through subordinate officers within an
administrative hierarchy.
19.16. Administrative functioning necessarily operates
through departmental machinery. Decision-
making and execution are conceptually distinct.
The authority who takes the decision may
utilise subordinates for communication, service,
drafting, or enforcement. Such acts do not
constitute sub-delegation of statutory power.
19.17. The present case falls squarely within this
distinction. The Joint Director, being a statutory
delegate under GSR 605(E), exercised the
decision-making authority. The FRRO, acting
within the established hierarchy, carried out the
implementation. This is administrative
execution, not legislative or statutory sub-
delegation.
19.18. The reliance placed upon Harla v. State of
Rajasthan is misplaced. In Harla, the Hon'ble
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Supreme Court dealt with the non-publication
of a penal law that created general criminal
liability. The Court held that a law which
imposes obligations upon the public must be
promulgated to acquire enforceability. The case
concerned absence of publication of a statute
affecting the general public.
19.19. Similarly, in I.T.C. Bhadrachalam
Paperboards, the Hon'ble Supreme Court
considered a statutory requirement mandating
Gazette notification for grant of tax exemption.
The statute itself prescribed publication as a
condition precedent to validity.
19.20. The present matter stands on a fundamentally
different footing. The Foreigners Act and the
relevant delegation notifications are duly
published. The Leave India Notice itself was
served upon the Petitioner. The internal file
movement, deliberations, and administrative
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directions between superior and subordinate
officers do not constitute "law" or "legislation."
They are components of executive decision-
making in an individual case.
19.21. There exists no constitutional or statutory
mandate requiring that every internal
administrative instruction or case-specific
direction be published in the Official Gazette. To
require gazetting of intra-departmental
communications would paralyse governance
and disregard the practical necessities of
executive administration.
19.22. The "law" in this case is the Foreigners Act,
1946, read with valid delegation notifications.
The "order" affecting the Petitioner is the Leave
India Notice, which was duly issued and served.
The internal instruction from the Joint Director
to the FRRO forms part of privileged
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administrative processing and does not
independently require publication.
19.23. It must also be noted that the power under
Section 3(2)(c) vests either in the Central
Government or in its duly authorised delegate.
Once validly delegated, the delegate acts in the
name and authority of the Central Government.
The exercise of power within that delegated
structure does not require personal issuance of
every communication by the highest officer in
the chain.
19.24. Administrative law recognises the distinction
between:
19.24.1. Delegation of power, which must be
authorised by statute and, where
required, notified; and
19.24.2. Administrative implementation,
which may be carried out through
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subordinate officers within a structured
hierarchy.
19.25. The Petitioner's argument collapses this
distinction and treats every act of execution as
impermissible sub-delegation. Such an
approach is unsustainable.
19.26. In the present case:
19.26.1. The power under Section 3(2)(c) stands
validly delegated under statutory
notification.
19.26.2. The decision was taken by a competent
delegate within the immigration
hierarchy.
19.26.3. The FRRO acted pursuant to that
decision in execution of departmental
authority.
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19.26.4. No statutory requirement mandates
Gazette publication of case-specific
internal directions.
19.26.5. The Leave India Notice itself was
formally issued and communicated to the
Petitioner.
19.27. Accordingly, the instruction from the Joint
Director (Immigration) to the FRRO constitutes
a lawful administrative direction for execution
of a statutory decision. It does not amount to
impermissible sub-delegation. Nor does it suffer
from invalidity on account of absence of
Gazette publication.
19.28. The power under Section 3(2)(c) is therefore
validly exercised through the duly authorised
administrative hierarchy.
19.29. I answers to Points 4 and 5 by holding that the
power under Section 3(2)(c) was validly
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exercised. The instruction from the Joint
Director to the FRRO constitutes a lawful
administrative direction for the execution of a
statutory order and does not amount to
impermissible sub-delegation. Such internal
communications need not be gazetted.
20. Answer to Point No.6: Whether the impugned
LIN suffers from arbitrariness and non-
application of mind?
20.1. The Petitioner argues arbitrariness based on the
dates: LIN dated 01.05.2019, SCN to Employer
dated 04.06.2019. They argue the decision was
pre-judged.
20.2. Sri Raghavan points out the glaring anomaly
the decision to expel the Petitioner (LIN) was
taken on May 1st, but the Show Cause Notice
asking the Employer to explain the fraud was
issued on June 4th. This chronology proves that
the Respondents had already decided to expel
the Petitioner before even hearing the
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Employer's version. This amounts to a "post-
decisional hearing" which is a farce is his
submission.
20.3. The Respondent clarifies that the inquiry began
in 2018. The facts (misrepresentation) were
admitted by the Company in July 2018. The
decision was based on those earlier admissions.
20.4. The learned ASGI submits that the dates must
be read in context. The FRRO had been
corresponding with the Company since July
2018. The Company admitted in its letter dated
26.07.2018 that "no advertisements were
placed". This admission crystallised the fraud.
The decision to issue the LIN was based on this
admission from 2018. The SCN in June 2019
was a separate proceeding regarding the
Company's liability, distinct from the decision
regarding the Petitioner's visa.
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20.5. This contention of the Learned Senior Counsel
for the Petitioner, at first glance, appears to
raise a legitimate procedural concern. However,
when the factual matrix is examined in its
entirety, the argument does not withstand
scrutiny.
20.6. The Respondents have placed material on
record demonstrating that the inquiry did not
commence in May 2019. The process began
much earlier. In December 2017, the Employer
submitted a justification letter asserting that no
suitable Indian candidate was available for the
position for which the Petitioner was recruited.
This assertion formed the basis of the
employment visa grant.
20.7. In July 2018, the FRRO initiated
correspondence seeking clarification regarding
the recruitment process. In response, by
communication dated 26.07.2018, the
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Employer admitted that no advertisements had
been placed to assess availability of Indian
candidates. This admission was not equivocal; it
directly contradicted the earlier representation
that no suitable Indian candidate was available
after due effort.
20.8. This sequence of events is significant. The
discrepancy between the 2017 justification and
the 2018 admission was not speculative; it was
documentary. Once the Employer conceded that
no advertisement was placed, the foundation of
the justification letter stood eroded. The
inference of misrepresentation was not a
matter of conjecture but arose from the
Employer's own written admission.
20.9. The decision-making process must therefore be
evaluated in light of this chronology:
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20.9.1. December 2017: Justification letter
claiming non-availability of Indian
candidates.
20.9.2. July 2018: Admission that no
advertisement was placed.
20.9.3. Post-July 2018: Evaluation of the
implications of that admission.
20.9.4. May 2019: Issuance of Leave India
Notice.
20.9.5. June 2019: Separate Show Cause Notice
to the Employer.
20.9.6. By May 2019, the authorities were in
possession of undisputed documentary
material establishing inconsistency
between representation and reality. The
LIN was thus not an impulsive or sudden
action; it followed a period of inquiry
extending over several months.
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20.10. The issuance of the Show Cause Notice to the
Employer in June 2019 must be understood in
its proper context. The proceedings concerning
the Petitioner's visa status and those
concerning the Employer's potential liability or
future eligibility under the visa regime are not
necessarily co-extensive. Immigration
enforcement action against a foreign national
may proceed independently of administrative or
penal consequences against the sponsoring
entity.
20.11. The Petitioner's argument presumes that both
proceedings must move together and that
expulsion cannot precede formal adjudication of
employer liability. The statute does not impose
such sequencing. The integrity of the visa
regime is compromised the moment material
misrepresentation is established. The regulatory
response concerning the foreign national is
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distinct from any collateral action against the
Employer.
20.12. Arbitrariness, in constitutional parlance, implies
action that is capricious, irrational, devoid of
relevant material, or taken without application
of mind. The Supreme Court in Shayara Bano
v. Union of India explained that "manifest
arbitrariness" denotes action that lacks a
determining principle or is excessive and
disproportionate.
20.13. In the present case, the impugned LIN is
traceable to a clearly identifiable factual basis,
admission of procedural non-compliance in
recruitment. The authorities did not act on
suspicion alone; they relied upon documentary
admission from the Employer. The decision was
therefore anchored in relevant material.
20.14. The allegation of non-application of mind must
also be rejected. Non-application of mind arises
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where the authority fails to consider relevant
material, considers irrelevant material, or acts
mechanically without discernible reasoning.
Here, the material forming the basis of the
action is evident from the record. The
chronology reflects a period of inquiry,
correspondence, and evaluation before issuance
of the LIN.
20.15. The mere fact that the Show Cause Notice to
the Employer bears a later date does not
invalidate the prior decision concerning the
Petitioner's visa. Administrative processes do
not always unfold in a linear or symmetrical
fashion. What is material is whether the
authority possessed sufficient material at the
time of decision. The record indicates that it
did.
20.16. Nor can the argument of "pre-judging" be
accepted in the absence of evidence of closed-
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mindedness. The decision appears to have been
taken after crystallisation of the discrepancy in
July 2018 and subsequent administrative
assessment. The interval between July 2018
and May 2019 itself indicates deliberation
rather than haste.
20.17. It must also be borne in mind that immigration
control is regulatory in nature. Once
misrepresentation underlying a visa is
established, continued stay loses its legal
foundation. The objective of protecting the
integrity of the visa regime constitutes a
legitimate state interest. The action taken bears
rational nexus to that objective.
20.18. Arbitrariness arises when an action is capricious
or lacks a rational basis. Here, the basis is
crystal clear and rational - Visa Fraud.
20.19. Delay in service or sequencing of notices,
without demonstrable prejudice, does not ipso
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facto establish arbitrariness. The Petitioner has
not demonstrated that relevant material was
ignored or that extraneous considerations
influenced the decision.
20.20. Viewed holistically, the impugned Leave India
Notice does not suffer from arbitrariness or
non-application of mind. It is founded upon
documentary material, processed through
administrative hierarchy, and directed towards
preserving the integrity of the immigration
framework.
20.21. I answer Point No.6: The impugned LIN does
NOT suffer from arbitrariness. It was based on
relevant material--the Employer's admission of
irregular recruitment--which constitutes a
rational nexus to the objective of protecting
national interests and the integrity of the visa
regime.
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21. Answer to Point No. 7: Whether allegations of
fraud or misrepresentation in the procurement
of an Employment Visa can be acted upon by
the FRRO without prior adjudication by the
visa-issuing authority?
21.1. The Petitioner argues that only the High
Commission (Visa Issuer) can determine if the
visa was obtained by fraud. The FRRO cannot
usurp this adjudicatory function.
21.2. It is submitted that fraud is a mixed question of
law and fact. The determination that the
Justification Letter was fraudulent requires a
judicial or quasi-judicial inquiry by the authority
that accepted the letter (the High Commission).
The FRRO, acting unilaterally, cannot declare a
document submitted to another authority as
fraudulent.
21.3. The Respondent argues that the FRRO is the
domestic enforcement authority and can act on
fraud detected within India.
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21.4. The learned ASGI submits that the FRRO is the
"eyes and ears" of the Government. If an alien
is found in India with a visa obtained by fraud,
the FRRO is statutorily bound to act. There is
no legal requirement to refer the matter back
to the foreign mission, which would cause
indefinite delays and compromise national
security.
21.5. This submission by the Learned Senior Counsel
for the Petitioner, though framed as a
jurisdictional restraint, misconceives the nature
of immigration control and the statutory role of
domestic enforcement authorities.
21.6. A visa is granted abroad by a diplomatic
mission of India, functioning under the Ministry
of External Affairs. However, once the foreign
national enters Indian territory, regulatory
jurisdiction over his continued stay shifts to
domestic authorities acting under the
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Foreigners Act, 1946 as also the state
authorities, our country being federal.
21.7. The Act does not create a bifurcated
sovereignty in which the visa-issuing authority
retains exclusive competence to determine
validity of representations or action even after
entry.
21.8. The Foreigners Act confers upon the Central
Government, and through valid delegation, its
domestic authorities, the power to regulate,
restrict, and if necessary terminate the
presence of foreigners within India. The FRRO
functions as the field-level statutory authority
responsible for monitoring compliance with visa
conditions, detecting irregularities, and
enforcing immigration control.
21.9. The Respondents submit that the FRRO acts as
the "eyes and ears" of the Government within
the territorial jurisdiction of India. This
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characterisation is not rhetorical but statutory
in substance. The detection of
misrepresentation after entry falls squarely
within the operational domain of domestic
immigration authorities. To hold otherwise
would create an artificial and impractical
distinction between grant of entry and
enforcement of conditions.
21.10. The Petitioner's argument implies that even if
fraud is detected on Indian soil, through
documentary admission or otherwise, the FRRO
must refer the matter back to the overseas
mission and await formal adjudication. Such a
proposition finds no support in the statute. The
Foreigners Act does not mandate referral to the
visa-issuing authority as a condition precedent
to regulatory action under Section 3(2)(c). This
is also impracticable and illogical since the
Petitioner against whom action is to be initiated
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would be residing in India, whereas the
determination would occur by the Indian High
Commission in Australia.
21.11. Looked at from any angale, once the visa has
been granted and the individual has entered
India, the diplomatic mission becomes functus
officio with respect to territorial regulation. The
jurisdiction to monitor compliance with visa
conditions and to respond to violations vests in
the domestic authorities, namely the Ministry of
Home Affairs and its delegates.
21.12. The argument that fraud requires a judicial or
quasi-judicial declaration also requires careful
scrutiny. The present matter does not involve
criminal prosecution for fraud under the Penal
Code. It concerns administrative satisfaction
that the foundation upon which the visa was
obtained stands vitiated by misrepresentation.
Administrative authorities are competent to act
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upon documentary material and admissions in
forming such satisfaction, subject to judicial
review.
21.13. In the present case, the material relied upon by
the authorities includes the Employer's own
written admission that no advertisements were
placed, contrary to the representation made in
the justification letter. The inference of
misrepresentation is therefore not speculative;
it is drawn from admitted facts. The FRRO did
not embark upon a roving adjudication of
complex disputed facts; it acted upon
documentary inconsistency apparent on record.
21.14. The Ho'ble Supreme Court in S.P.
Chengalvaraya Naidu v. Jagannath
observed that fraud vitiates all solemn acts and
that a person who approaches a forum with
falsehood cannot retain advantage obtained
thereby. Although that decision arose in the
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context of civil proceedings, the underlying
principle is of general application: an act
obtained by fraud is voidable at the instance of
the authority competent to regulate the subject
matter.
21.15. A visa obtained through material
misrepresentation does not acquire immunity
merely because it was initially granted by a
diplomatic mission. The regulatory authority
empowered to supervise continued stay must
necessarily possess the incidental power to act
when foundational representations are shown
to be false.
21.16. If the Petitioner's argument were accepted, it
would produce grave and untenable
administrative consequences. Consider a
scenario where a foreign national suppresses a
criminal antecedent, or where an employer
fabricates material facts to secure an
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employment visa, and the falsity is detected
after the individual has entered India. If
domestic authorities were compelled to refer
the matter back to the overseas mission and
await fresh adjudication, the following
consequences would inevitably ensue:
21.16.1. Indefinite delay: Diplomatic
correspondence across jurisdictions,
examination of records abroad, and re-
evaluation by the issuing mission would
consume considerable time. The statute
does not contemplate suspension of
enforcement pending such protracted
inter-governmental communication.
21.16.2. Undermining of domestic
enforcement: The statutory authority
charged with monitoring foreigners
within India would be rendered
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powerless to act promptly upon material
irregularity discovered within its
territorial jurisdiction.
21.16.3. Compromise of public order and
national security: Immigration control
is integrally linked with internal security.
Delay in response to detected
misrepresentation could expose the
State to avoidable risk.
21.16.4. Frustration of legislative intent:
Section 3(2)(c) would be rendered
ineffective if its invocation were
conditioned upon a prior overseas re-
determination by the issuing mission.
21.17. A further and more immediate difficulty arises,
what would be the legal status of such a foreign
national during the interregnum? If referral to
the overseas mission were mandatory, and if
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domestic authorities were disabled from acting
pending that decision, the individual would, in
effect, continue to remain in India under a
cloud of established misrepresentation.
21.18. Two possibilities then emerge, neither of which
is constitutionally or administratively tenable.
21.18.1. First, the person would be permitted to
remain at large, notwithstanding credible
material indicating that the visa was
procured by fraud. This would amount to
conscious toleration of illegality and
erosion of regulatory discipline.
21.18.2. Second, the person would be placed
under restraint or detention pending
foreign adjudication. Such detention, in
the absence of a domestic statutory
determination under Section 3, would
itself raise serious constitutional
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concerns under Article 21, for preventive
custody cannot be justified merely on
the basis of administrative uncertainty.
21.19. Thus, the Petitioner's proposed procedural
sequencing leads either to regulatory paralysis
or to disproportionate coercive restraint. Both
outcomes are inconsistent with the statutory
design of the Foreigners Act, which empowers
domestic authorities to act decisively and
proportionately within their jurisdiction.
21.20. The statute contemplates that the authority
responsible for regulating presence within India
must also possess the incidental power to
respond to discovered illegality. It would be
incongruous to hold that domestic authorities
may detect fraud but must suspend action until
validation from a foreign post is secured.
21.21. The interpretation urged by the Petitioner is
therefore not merely impractical; it is
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structurally incompatible with the statutory
framework and constitutional balance.
21.22. Accordingly, the power of the domestic
authority to act upon fraud detected within
India cannot be made contingent upon prior
adjudication by the visa-issuing mission.
21.23. Immigration control is dynamic and territorial.
The authority responsible for enforcement
within India must necessarily possess the
competence to act upon fraud detected within
its jurisdiction.
21.24. It is also important to distinguish between
cancellation of a visa as an administrative
endorsement and termination of stay under
statutory power. The FRRO did not purport to
"cancel" the visa stamp issued by the High
Commission. It exercised statutory power under
the Foreigners Act to direct that the foreigner
shall not remain in India. The two operate at
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different legal planes. The existence of
misrepresentation provided the factual basis for
invoking statutory power; it did not require
prior formal cancellation by the issuing mission.
21.25. The determination made by the FRRO is
administrative in character and subject to
judicial scrutiny. It is not a final criminal
adjudication of fraud; it is a regulatory decision
regarding continued stay. The threshold for
such administrative action is satisfaction based
on relevant material, not proof beyond
reasonable doubt.
21.26. In the present case, the admission by the
Employer in July 2018 constituted relevant and
substantial material. The authorities were
therefore competent to conclude that the
foundation of the visa stood compromised. The
action taken bears rational nexus to the
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objective of preserving the integrity of the visa
regime.
21.27. Accordingly, there is no statutory requirement
that allegations of fraud or misrepresentation in
procurement of an Employment Visa must first
be adjudicated by the overseas visa-issuing
authority before domestic regulatory action is
taken. The FRRO, acting within the delegated
framework of the Foreigners Act, is competent
to act upon such material when discovered
within India.
21.28. The Petitioner's argument would lead to a
dangerous proposition where domestic security
agencies are powerless to act against visa fraud
detected on Indian soil. The FRRO is the
competent authority to monitor foreigners
within India.
21.29. If a foreigner obtains a visa by suppressing a
criminal record, or as in this case, by the
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employer suppressing the availability of local
talent, and this fact is discovered after entry,
the FRRO is the competent authority to act. The
High Commission in Canberra is functus officio
once the visa is issued and the person enters
India. The jurisdiction to police the conditions of
the visa shifts to the domestic authorities
(FRRO/MHA).
21.30. I answer Point No. 7 by holding that the
allegations of fraud or misrepresentation can be
validly acted upon by the FRRO. There is no
requirement to refer the matter back to the
overseas visa-issuing authority for adjudication.
22. Answer to Point No, 8: Whether a show-cause
notice issued to the employer can satisfy the
requirements of natural justice, qua the
employee against whom the adverse civil
consequence is directed?
22.1. The Petitioner argues he is a separate legal
entity from the Employer and should have been
heard independently.
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22.2. It is argued that the Petitioner has distinct
rights. He has a lease, a bank account, and a
reputation in India. The Employer's admission
of fault cannot automatically bind the Petitioner
without him being given a chance to prove his
own bona fides or lack of complicity in the
Employer's fraud.
22.3. The Respondent argues that the visa is an
Employment Visa, inextricably linked to the
sponsorship of the Employer.
22.4. The learned ASGI submits that under the visa
rules, the employee is the "beneficiary" and the
employer is the "petitioner/sponsor". If the
sponsor withdraws support or if the sponsorship
is found invalid, the beneficiary's status
collapses automatically. There is no
independent right to the visa divorced from the
employment.
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22.5. The nature of the visa is of importance. An
Employment Visa (E-2) is a sponsored visa. It
is granted not just on the Petitioner's merit, but
on the Employer's certification that the post
cannot be filled by an Indian. The Employer
acts as the agent and sponsor of the Petitioner
for the purpose of the visa application.
22.6. Under the law of agency and the specific rules
of visa sponsorship, the employee stands in the
shoes of the employer regarding the
justification of the post. If the Employer, the
entity solely responsible for the market search,
admits that no search was done, the foundation
of the visa collapses. The Petitioner, as the
employee, cannot plausibly argue that he
knows more about the Company's HR
recruitment processes (advertisements,
interviews of Indians) than the Company itself.
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22.7. Therefore, the notice to the Employer was the
correct procedural step. Hearing the Petitioner
would have served no purpose as he could not
contradict the Company's own admission
regarding the lack of advertisements. The
principles of natural justice do not require futile
hearings.
22.8. The employee is the beneficiary of a
sponsorship-based representation made by the
Employer to the visa-issuing authority. The
Employer functions, in effect, as the petitioner
and sponsor, and the visa stands upon the
foundation of the Employer's declarations.
22.9. When the very foundation of that sponsorship is
shown to be defective, through the Employer's
admission that no advertisement was placed
despite a prior representation to the contrary,
the basis upon which the Employment Visa
rests is undermined.
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22.10. Learned Senior Counsel for the Petitioner has
submitted that the Petitioner ought to have
been heard independently to demonstrate
absence of personal fraud or complicity. This
argument must be evaluated against the nature
of the misrepresentation.
22.11. The alleged fraud in the present case does not
concern falsification of the Petitioner's
educational qualifications or concealment of his
personal antecedents. It concerns the
Employer's certification that no suitable Indian
candidate was available and that due market
search had been conducted. The factual matrix
relating to recruitment, advertisements,
interviews, search process, is exclusively within
the knowledge and control of the Employer. The
employee cannot reasonably claim superior
knowledge regarding the Employer's internal
human resource procedures.
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22.12. The Employer, having been issued notice and
having admitted that no advertisement was
placed, effectively conceded the factual premise
on which the visa was justified. Once that
admission was on record, the regulatory
consequence flowed from the collapse of
sponsorship conditions.
22.13. Natural justice requires a meaningful
opportunity to respond to adverse material. It
does not require multiplication of hearings
where the foundational facts are admitted and
lie outside the knowledge domain of the person
seeking separate hearing.
22.14. Principles of natural justice are flexible and
context-dependent. They do not mandate
ritualistic compliance where the outcome would
remain unaltered. A hearing that would serve
no useful purpose need not be insisted upon as
an empty formality.
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22.15. In the present case, what could the Petitioner
have meaningfully asserted? He could not
dispute whether advertisements were placed;
that fact lay within the Employer's domain and
stood admitted. He could not independently
validate the recruitment process undertaken by
the Company. His lack of personal involvement
in the alleged misrepresentation, even if
assumed, would not revive a visa whose
foundational condition was shown to be
unfulfilled.
22.16. It is also important to distinguish between
culpability and regulatory consequence. The
impugned action does not impose penal liability
upon the Petitioner for fraud. It regulates his
continued stay based upon the collapse of
sponsorship conditions. The absence of
personal wrongdoing does not transform a
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sponsored visa into an independent right to
remain.
22.17. The Employment Visa regime operates on the
principle that sponsorship validity is a
continuing condition. If sponsorship is
withdrawn, invalidated, or shown to be
fundamentally defective, the beneficiary's
status correspondingly lapses. This is inherent
in the nature of sponsored visas across
immigration systems.
22.18. The Petitioner's argument that he possesses
independent civil attributes, leasehold interest,
bank accounts, professional associations, does
not alter the legal character of the visa. These
are consequences of his presence in India, not
sources of independent entitlement to remain.
22.19. It must further be emphasised that natural
justice is concerned with fairness in decision-
making. The Employer, who was solely
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responsible for the statutory declaration
forming the basis of the visa, was issued notice
and responded. The factual issue relevant to
the visa, whether due recruitment process was
undertaken, was addressed at the appropriate
source. Once that issue was clarified through
the Employer's admission, there remained no
separate factual controversy requiring
independent adjudication vis-à-vis the
Petitioner.
22.20. The principles of natural justice do not compel
authorities to conduct parallel inquiries where
the material facts stand admitted by the party
exclusively competent to speak to them.
22.21. Accordingly, in cases of Employment Visa
sponsorship where the alleged
misrepresentation pertains to the Employer's
statutory declarations, issuance of a show-
cause notice to the Employer satisfies the
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procedural requirement of fairness. The
beneficiary employee cannot claim an additional
independent hearing where the determinative
facts lie beyond his personal domain and stand
admitted by the sponsor.
22.22. The impugned action therefore does not suffer
from violation of natural justice on this ground.
22.23. I answer Point No. 8 by holding that a show-
cause notice issued to the employer satisfies
the requirements of natural justice qua the
employee in cases of Employment Visa fraud
where the misrepresentation relates to the
employer's statutory declarations (Justification
Letter).
23. Answer to Point No. 9: Whether the writ
petition has been rendered infructuous or
academic on account of the petitioner's exit
from India, expiry of the Employment Visa, and
subsequent grant of business and tourist visas,
or whether the impugned LIN continues to have
civil, reputational, or legal consequences
warranting judicial review?
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23.1. The Petitioner argues the petition is not
infructuous because of the "stigma" affecting
future travel.
23.2. Learned Senior Counsel for the Petitioner
submits that the LIN is a permanent blot. He
produces visa application forms for the USA,
UK, and Japan, which ask: "Have you ever been
ordered to leave any country?" The Petitioner
must answer "Yes" because of the LIN. This will
prejudice his future travel.
23.3. Relying on Union of India v. Narendra Singh
and M. Sudhakar v. V. Manoharan, he argues
that even if the order is executed, the Court
can examine its legality to remove the stigma.
He also cites Amit Kumar Sharma v. Union
of India regarding the need for transparency
and disclosure to fight stigma.
23.4. The Respondent argues the Petitioner has left
India, the visa expired in 2020, and he has
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since been granted new visas
(Business/Tourist), proving no permanent
blacklist exists.
23.5. The learned ASGI points out that the Petitioner
voluntarily left India in November 2019. The E-
2 visa expired in January 2020. Subsequently,
the Petitioner applied for and was granted a
Business Visa (2020) and a Tourist Visa (2024).
This conduct by the Government of India
proves there is no permanent ban. The LIN has
"spent itself".
23.6. The Respondent relies on Minerva Mills Ltd.
v. Union of India, to contend that the Court
should not decide academic questions. Since
the Petitioner has already left and the visa has
expired, the validity of the LIN is now an
academic question.
23.7. In the present case, the primary relief sought
by the Petitioner was to quash the Leave India
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Notice so as to enable him to remain in India
under the Employment Visa. That relief has
become incapable of grant. The Petitioner has
already left India. The Employment Visa expired
more than six years ago. A writ directing the
Respondents to permit continuation of a visa
that has expired by efflux of time would be
legally untenable.
23.8. This Court must therefore consider whether
any surviving civil consequence justifies
continued adjudication.
23.9. The Petitioner relies upon the concept of
stigma. The Respondents have placed on record
that subsequent Business and Tourist visas
were granted to the Petitioner. These grants
are significant. They demonstrate that the
Government of India has not imposed a
permanent ban, blacklist, or enduring disability
upon the Petitioner.
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23.10. The very authority that issued the impugned
LIN subsequently cleared the Petitioner for re-
entry into India on fresh visa categories. This
conduct negates the assertion of continuing
stigma within the Indian immigration
framework.
23.11. The underlying rationale for the issuance of the
Leave India Notice is not difficult to discern.
The action was precipitated by material
misrepresentation made by the Employer in the
course of securing the Employment Visa. The
foundation of the visa rested upon the
Employer's certification that statutory
conditions had been fulfilled, including the
assertion that no suitable Indian candidate was
available. Once that representation was shown
to be factually incorrect, the legal substratum
of the visa stood vitiated.
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23.12. Though the regulatory action was formally
directed against the Petitioner, its necessity
arose from the Employer's misrepresentation.
The Petitioner's entitlement to remain in India
under the Employment Visa was derivative in
character; it flowed from, and was inseparably
linked to, the validity of the Employer's
sponsorship and declarations. When the
foundational representation collapsed, the
superstructure built upon it could not survive.
23.13. It is immaterial, in this regulatory context,
whether the Petitioner personally participated in
or had knowledge of the misrepresentation. The
action taken is not penal in nature; it does not
attribute criminal culpability to the Petitioner.
Rather, it addresses the continuing validity of
the visa status. A person claiming benefit under
a representation subsequently shown to be
materially false cannot insist upon retention of
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that benefit merely on the ground of absence of
personal complicity.
23.14. The principle that no person can retain
advantage obtained through misrepresentation
applies irrespective of whether the beneficiary
was the author of the falsehood. Once the
statutory condition underpinning the
Employment Visa is demonstrated to be
unfulfilled, the derivative status of the
employee cannot subsist independently of that
defect.
23.15. Accordingly, the Petitioner cannot retain the
benefit of a visa whose very foundation was
compromised by material misrepresentation of
the sponsoring Employer.
23.16. The apprehension expressed by the Petitioner
regarding potential prejudice in future foreign
visa applications remains, at its core,
speculative and contingent upon decisions of
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independent sovereign jurisdictions. The
function of this Court under Article 226 is to
examine the legality, validity, and constitutional
sustainability of State action within its own
territorial and statutory domain. It is not the
province of this Court to render advisory
declarations for the collateral purpose of
influencing or facilitating responses in
immigration questionnaires administered by
foreign governments.
23.17. Each sovereign nation frames and applies its
immigration policies in accordance with its own
domestic law. How a foreign authority may
interpret, contextualise, or weigh a historical
regulatory action taken by Indian authorities
lies entirely outside the adjudicatory reach of
this Court. Judicial review cannot be extended
into the realm of anticipatory reputational
management before other sovereign states.
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The mere possibility that the Petitioner may be
required to disclose a prior Leave India Notice
in a foreign visa application does not, in itself,
create a subsisting legal injury within the
jurisdiction of this Court.
23.18. More importantly, the material on record
demonstrates that the Government of India has
subsequently granted fresh Business and
Tourist visas to the Petitioner. This conduct
evidences the absence of any continuing
adverse classification, blacklist, or prohibition
within the Indian immigration framework. The
regulatory action was specific to the
Employment Visa context and did not translate
into a permanent exclusion. In the absence of
an enduring legal disability within India, the
alleged reputational consequence abroad
cannot sustain a live writ remedy.
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23.19. It is also necessary to address the Petitioner's
attempt to distance himself from the
misrepresentation that formed the basis of the
impugned action. The record indicates that the
Employment Visa was granted on the strength
of statutory declarations made by the
sponsoring Employer, particularly the
representation that no suitable Indian candidate
was available for the post. The Petitioner's
entitlement to remain in India under that visa
was derivative and conditional; it flowed
directly from the validity of the Employer's
sponsorship.
23.20. When it emerged that the representation
regarding recruitment efforts was factually
unsustainable, the legal foundation of the
Employment Visa stood compromised. The
regulatory consequence that followed was not
punitive in nature but corrective and
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preventive. It addressed the continuing validity
of immigration status rather than attributing
criminal culpability.
23.21. The Petitioner may not have been the author of
the misrepresentation. However, he was
undeniably the beneficiary of the
representation. Immigration law, particularly in
the context of sponsored visas, operates on the
principle that the beneficiary's status is
inseparable from the sponsor's compliance with
statutory conditions. When the foundational
declaration collapses, the derivative benefit
cannot survive in isolation.
23.22. To permit the Petitioner to retain the advantage
of a visa secured upon a materially defective
sponsorship would undermine the integrity of
the visa regime and dilute regulatory discipline.
The law does not countenance retention of
benefits flowing from misrepresentation,
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irrespective of whether the beneficiary
personally orchestrated the falsehood. The
issue is not moral blameworthiness but
regulatory validity.
23.23. The Employment Visa was not an autonomous
personal right divorced from its sponsorship
matrix. It was contingent upon the truthfulness
and completeness of the Employer's
declarations. Once that matrix was shown to be
flawed, the consequent regulatory action was a
lawful response to the collapse of conditions
precedent.
23.24. In that sense, the consequences that ensued
were not imposed arbitrarily upon the Petitioner
but were inherent in the structure of the visa
category under which he sought entry and stay.
The Petitioner cannot now disassociate himself
from the consequences that inevitably follow
when the very basis of his derivative
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immigration status is shown to be
unsustainable.
23.25. The Petitioner's reliance on Narendra Singh
and Sudhakar does not advance the case.
Those decisions recognise that execution of an
order does not automatically render a matter
infructuous where substantive rights continue
to be affected. However, here, the foundational
right asserted, the right to remain under the
Employment Visa, has itself expired by efflux of
time. The statutory basis of stay has ceased
independently of the impugned action.
23.26. The Court must also note that the subsequent
grant of visas materially alters the landscape. If
the impugned LIN had resulted in permanent
exclusion, blacklisting, or statutory disability,
the argument of enduring consequence might
merit closer examination. The record reflects
the contrary.
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23.27. The Petitioner has also relied upon State of
Maharashtra v. Mayer Hans George to
suggest that strict liability principles must be
tempered by fairness. However, that decision in
fact upheld strict enforcement of statutory
obligations upon foreigners and recognised that
absence of mens rea does not necessarily
invalidate regulatory action. The reliance is
therefore misplaced and, if anything, reinforces
the State's regulatory competence.
23.28. Judicial discipline requires that courts refrain
from deciding academic issues. The controversy
that once existed, whether the Petitioner could
continue under the Employment Visa, has
ceased to exist in fact and in law. The
impugned LIN operated within a finite temporal
framework. That framework has concluded.
23.29. In assessing whether the petition retains
vitality, the Court must examine whether any
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enforceable right presently survives for
adjudication. None does. The Petitioner is not
presently under restraint. He has re-entered
India under subsequent visas. There is no
subsisting order prohibiting his entry or
imposing a continuing disability.
23.30. In these circumstances, the writ petition has
been rendered infructuous. The challenge to the
impugned Leave India Notice now presents an
academic question devoid of operative
consequence.
23.31. I answer Point No. 9 by holding that the writ
petition has been rendered infructuous and
academic. The Petitioner has exited India, the
visa has expired, and the subsequent grant of
new visas by the Respondents negates the
claim of enduring stigma or permanent
disability.
24. Answer to Point No. 10: What order?
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24.1. A visa is a conditional permission to enter India
and does not confer an indefeasible or vested
right to remain for its entire duration. The
issuance of a Leave India Notice under Section
3(2)(c) of the Foreigners Act, 1946 is an
independent statutory exercise of sovereign
power to regulate presence of foreigners. It
does not amount to an impermissible indirect or
de facto cancellation of the visa.
24.2. The Foreign Regional Registration Officer,
acting as the designated Civil Authority under
valid statutory notifications issued pursuant to
Section 12 of the Foreigners Act and the
Foreigners Order, 1948, possesses statutory
jurisdiction to issue a Leave India Notice within
his territorial jurisdiction.
24.3. The power under Section 3(2)(c) vests in the
Central Government and its duly authorised
delegates. Where the competent delegate (Joint
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Director - Immigration) takes the decision and
directs a subordinate officer to issue and serve
the notice, such action constitutes lawful
administrative execution and not impermissible
sub-delegation. Internal administrative
directions need not be published in the Official
Gazette.
24.4. The impugned Leave India Notice does not
suffer from arbitrariness or non-application of
mind. It is founded on relevant documentary
material, including the Employer's admission
regarding irregular recruitment, and bears a
rational nexus to the objective of preserving the
integrity of the visa regime.
24.5. Allegations of fraud or misrepresentation
detected after entry into India can be acted
upon by domestic immigration authorities.
There is no statutory requirement that such
matters must first be adjudicated by the
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overseas visa-issuing authority. Once entry is
effected, regulatory jurisdiction over continued
stay vests in domestic authorities.
24.6. In cases of Employment Visa sponsorship,
where the alleged misrepresentation pertains to
the Employer's statutory declarations forming
the foundation of the visa, issuance of a show-
cause notice to the Employer satisfies the
requirements of natural justice. A separate
hearing to the employee is not mandated where
the determinative facts lie exclusively within
the Employer's domain and stand admitted.
24.7. The Petitioner has exited India, the
Employment Visa has expired by efflux of time,
and the Petitioner has subsequently been
granted Business and Tourist visas. The
primary relief sought has become incapable of
grant, and no enduring civil, legal, or
reputational disability subsists. The writ petition
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has therefore been rendered infructuous and
academic.
24.8. In view of the above findings, I pass the
following
ORDER
i. The writ petition is dismissed.
ii. In any event, the writ petition has been rendered infructuous due to subsequent events, including the Petitioner's departure from India, expiry of the Employment Visa, and grant of fresh visas.
iii. The impugned Leave India Notice does not suffer from illegality, lack of jurisdiction, violation of natural justice, arbitrariness, or constitutional infirmity.
SD/-
(SURAJ GOVINDARAJ) JUDGE PRS List No.: 2 Sl No.: 54