Recently, the Orissa High Court was approached by a government doctor, nearing retirement, who faced repeated denial of a No Objection Certificate from his department. Despite applying to travel abroad to visit his daughter in Singapore and cooperating fully with investigations, his requests were refused on the grounds of long-pending departmental proceedings. Challenging whether administrative instructions could override fundamental rights, he moved the Court, raising questions about the limits of executive authority and the protection of personal liberty.
Brief Facts:
The case arises from a situation where a government doctor, nearing retirement, wished to obtain a passport so he could visit his daughter living in Singapore. As a government employee, he was required to submit a No Objection Certificate issued by his department. He applied for this certificate in 2022, but the authorities rejected the request on the grounds that he had been unauthorised absent from duty since 2013 and that several departmental proceedings were pending against him. After the High Court permitted him to renew his request due to the passage of time, he reapplied in 2024 and informed the department that one of the proceedings had already been dropped. Despite this, the authorities again rejected his request in 2025, relying on the same grounds. Feeling aggrieved, he approached the Court seeking quashing of the rejection orders and a direction to issue the certificate so that he could apply for a passport.
Contentions of the Petitioner:
The counsel for the Petitioner argued that the right to travel abroad flows from the right to personal liberty guaranteed under Article 21 of the Constitution of India,1975. The petitioner contended that such a fundamental right cannot be restricted by an executive instruction, especially when the Passports Act does not impose any bar on passport issuance merely because departmental or vigilance proceedings are pending. The counsel maintained that the proceedings against him had been pending for many years without progress, and that the mere pendency of such proceedings cannot be treated as guilt, since every person is presumed innocent unless held otherwise by a competent authority. The Petitioner also emphasised that one vigilance case had already ended in acquittal and the other was still awaiting trial, and assured the Court that he had cooperated throughout the investigation and would continue to appear whenever required. According to him, denying him the certificate indefinitely amounted to an unjust and unconstitutional restriction on his liberty.
Contentions of the Respondents:
The counsel for the Respondents resisted the plea by asserting that the employee had remained absent without authorisation since 2013 and continued to face two departmental proceedings that were still pending. They referred to a government communication issued in 2014 stating that a No Objection Certificate may be issued only when no departmental proceeding is pending or contemplated, arguing that this instruction bound them to refuse the certificate. The Passport Authority clarified that under the Passport Manual, government servants are required to submit a certificate from their employer, and this requirement cannot be waived. It further stated that decisions relating to the issuance or refusal of such certificates fall entirely within the domain of the employer, and therefore the passport office could not process any application unless the employee first obtained the required document from his department.
Observation of the Court:
The Court observed whether any law not an executive instruction actually prevents a government servant from obtaining a passport during pending proceedings. It noted that the Passports Act itself does not contain any clause that prohibits the issuance of a passport merely because a disciplinary or vigilance proceeding is pending. In fact, the Court expressly stated that “there is nothing in the Passport Act which even remotely suggests that pendency of disciplinary proceeding (or vigilance case) would stand as an absolute bar for grant of passport.”
The Court then looked at the 2014 government communication relied on by the authorities. It found that this letter was not a statutory rule, but only an executive instruction. Relying on the principle from Maneka Gandhi v. Union of India, the Court reiterated that fundamental rights cannot be curtailed by executive orders; only a law enacted by the legislature can impose such a restriction. Explaining this principle, the Court noted that an executive instruction that indirectly prevents a citizen from applying for a passport ultimately ends up curtailing the right to travel abroad, which falls within the realm of personal liberty safeguarded by Article 21. In the Court’s own words, “letter dated 28.01.2014 serves to place an embargo on the fundamental right of a citizen to travel abroad. It is needless to mention that this, in effect amounts to infringement of the right to liberty guaranteed under Article -21 of the Constitution of India.”
The Court also addressed the State’s justification that the petitioner had pending departmental proceedings. It rejected the idea that mere pendency of a proceeding could be treated as a finding of guilt. Drawing from the foundational principle of criminal jurisprudence, the Court explained that a person remains innocent until proven otherwise. This was captured clearly when it observed that “mere pendency or contemplation of disciplinary proceeding cannot, under any circumstances, be treated as proven guilt of the employee concerned. It would militate against the fundamental tenet of criminal jurisprudence that every person is presumed innocent until proven guilty.”
The Court also referred to earlier decisions such as Suresh Nanda V. CBI and the Allahabad High Court’s rulings, which clarified that even where the Passports Act gives discretion to the authority (for example, to impound a passport), that discretion cannot be exercised automatically just because a case is pending. Proper reasons must be recorded, and the authority must show why the restriction is necessary. Incorporating that reasoning, the Court noted that “when discretionary power is vested on a quasi-judicial authority, it is absolutely necessary that proper reasons are to be cited by it, while determining or adjudicating any matter. Tested in the backdrop of the above requirement, the impugned order falls short by a long margin and therefore, cannot be sustained.”
Bringing these strands together, the Court concluded that refusing a No Objection Certificate solely because of pending proceedings without any statutory basis effectively blocks the petitioner from travelling abroad, thereby violating constitutional protections. This conclusion was captured in the Court’s final observation that the refusal of NOC “indirectly amounts to infringement of his fundamental right to liberty as per Article 21.”
The decision of the Court:
The Court held that denying the NOC solely due to pending departmental proceedings violates Article 21 and has no legal basis. The Court allowed the writ petition and directed the authorities to issue the NOC within six weeks.
Case Title: Dr. Ashok Kumar Behera v. State of Odisha & Ors.
Case No.: W.P.(C) No. 5362 of 2025
Coram: Hon’ble Mr Justice Sashikanta Mishra
Counsel for the Petitioner: Adv.Sidheswar Mallik, Adv.P.C. Das, Adv M.Mallik, Adv.S. Malllick and Adv.A.P. Mohanty
Counsel for the Respondent: Addl. Govt Adv. S Pattnaik, DSGI P.K. Parhi, CGC S. Patra
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