Shri Jagdish Yadav vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 622 Del

JUDGMENT

S.K. Mahajan, J.

1. By this writ petition, the petitioner is seeking to challenge the orders dated 20th December, 1997 and 24th December, 1997 issued by the respondents. On 20th December, 1997 the Bureau of Civil Aviation Security had first given a direction that the airport entry passes issued to the employees of the Turkmenistan Airlines stood cancelled with immediate effect, but another order was issued on the same date informing the airlines that orders issued earlier regarding cancellation of airport passes of all the employees of the airlines stood withdrawn, however, any type of airport pass including commercial pass and photo identity card issued to the petitioner and any other staff of M/s. Deepika Travel, Cozy Travel, N-1, Connaught Place, middle circle, New Delhi stand cancelled. By order dated 24th December, 1997, photo identify cards etc. were directed to be surrendered to Regional Deputy Commissioner of Security.

2. The case set up by the petitioner is that he was appointed the General Manager of the Turkmenistan Airlines which had its office at N-1, BMC House, Connaught Place, New Delhi; that to discharge his duties as General Manager of the airlines, the petitioner was issued a pass in his official capacity by the respondents to enter the airport; that as General Manager of the airlines, the petitioner has a vital role to play for effective control of the management and of the airlines and regarding the operation of its services and that the airport pass was issued to the petitioner in the capacity of General Manager to discharge his duties incidental to his office work and was not issued in his personal capacity. By a fax message dated 20th December, 1997 the airlines was informed that airport entry passes issued to the employee of the airlines stood cancelled with immediate effect. This order was, however, modified to read that it was only the airport pass and/or commercial pass issued to the petitioner and any other staff of Deepika Travel or Cozy Travel that was cancelled and they were directed to surrender the same to the Regional Deputy Commissioner Board of Civil Aviation Security. The airlines as well as the petitioner wrote to the respondent on 23rd December, 1997 to withdraw their instructions and not to act upon the same, as the same would amount to interference in the discharge of his duties by the petitioner and also interference in the air service agreement entered into between the airlines and the Director General Civil Aviation. The respondents by letter dated 24th December, 1997 while acknowledging the aforesaid letter of 23rd December, 1997 called upon the airlines to get the photo identity card of the petitioner to be returned to the office of the Bureau of Civil Aviation Security immediately. As already mentioned above, this order has been challenged by the petitioner on the ground that the respondents could not arrogate to themselves the power to act without notice preventing the petitioner from the privileges and advantages of discharging his duties as General Manager. It is submitted that the impugned orders issued by the respondents were clearly arbitrary and without jurisdiction on the ground of the same having been issued without following the principles of natural justice and without giving an opportunity to the petitioner to represent his case before passing the said orders. The order is stated to be malafide, capricious, arbitrary and contrary to law. Learned counsel for the petitioner in support of his case has relied upon the judgments of the Supreme Court reported as Smt. Maneka Gandhi Vs. Union of India and Another, and Mohinder Singh Gill and Another Vs. Chief Election Commissioner and Others, .

3. In Smt. Maneka Gandhi Vs. Union of India and Another (Supra), it was held by the Supreme Court that even where there was no specific provision in a statute or rule made therein for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. It was held that even executive authorities when taking administrative action which involves any deprivations of or restrictions on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done and they have a duty to proceed in a way which is free from even appearance of arbitrariness or unreasonableness or unfairness.

4. In Mohinder Singh Gill and Another Vs. Chief Election Commissioner and Others (Supra), it was held that fair hearing is a postulate of decision making cancelling a poll, although fair abridgment of that process is permissible. It was held that it can be fair without the rules of evidence or form of trial but it cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise one must read this functional obligation.

5. There cannot be any dispute about the proposition that where an order is passed which involves deprivation of or restrictions on inherent fundamental rights of citizens, authorities should normally not take an action without giving an opportunity of hearing to the party affected by such a decision and the decision should be taken in a manner which meets the requirements of natural justice. It is in this background that this Court is to examine whether the order passed by the respondents directing the airlines to immediately surrender the photo identity card of the petitioner is arbitrary and whether an opportunity of hearing was required to be given to the petitioner before passing such an order.

6. The respondents in their counter affidavit have stated that no show cause notice or opportunity of hearing was required to be given to the petitioner in the facts and circumstances of the case. It was submitted that the respondents were in possession of information which revealed that it would not be in the national or public interest if the petitioner was allowed to continue to hold an airport pass. It is submitted that the cancellation of petitioner's airport pass would not in any manner affect the management and operation of the services of aircrafts of Turkmenistan airlines and it is only in respect of one employee that the pass was cancelled and the passes of all other officials/managers of the airlines having not been cancelled, there was no question of causing an undue or unreasonable impediment to the Turkmenistan airlines to function from Delhi. It is submitted that to get a photo identity card or any other pass to enter the airport was not the vested right of the petitioner. The pass, according to the respondents, can be given under the rules framed for the purpose. Under the guidelines for issue of airport, any person who has a legitimate function at an airport or who is directly connected with the operation of flights or with the safety and security of civil aviation operations can be issued an airport pass in accordance with the guidelines. Under guideline 6.10 the Bureau of Civil Aviation, Security has reserved to itself the right to refuse to issue or to withdraw the airport pass already issued without assigning any reason in public interest.

7. From the above, it is clear that entry into the restricted area viz. the airport, is not a vested right of any individual. It is only a person who is entitled under the guidelines to enter the airport that a pass can be issued to him and such pass, if already issued, can be cancelled or withdrawn in public interest. The respondents have produced in Court the file in which the matter relating to the withdrawal of pass to the petitioner was considered by the Office of the Director General of Civil Aviation as well as by the Bureau of Civil Aviation, Security. I have gone through the file and I am satisfied that there was sufficient material available before the respondents to come to a finding that it would not be in the interest of the airport or the national security, if the petitioner was allowed to continue to hold an airport pass and thus gain access to the airport. I am in agreement with learned counsel for the respondents that the information available with the respondents was quite sensitive and it was not in public interest to disclose the same either to the petitioner or by way of counter affidavit. As held by the Supreme Court in Maharastra State Board of Secondary Education Vs. K.S. Gandhi , the omnipresence and omniscience of the principle of natural justice act as deterrence to arrive at arbitrary decision inflagrant intraction of fair play but the applicability of the principles of natural justice is not a rule of thumb or a strait jacket formula as an abstract proposition of law and it depends on the facts of the case, the nature of inquiry and the effect of the order/decision on the rights of the person and the attending circumstances. The respondents in a given case would thus be within their rights not to give an opportunity of hearing to the petitioner, if the circumstances so demand. In public interest or in the interest of the security of the country, it may be necessary not to follow the principles of natural justice and when called upon, the reasons for passing the order can be placed before the Court. Rules of natural justice are not embedded rules nor can they be raised to the position of fundamental rights.

8. That being the position, in my view, the respondents were within their rights to pass the impugned order without giving an opportunity of hearing to the petitioner. On the basis of the material shown to the Court, I have no hesitation in holding that there is neither any arbitrariness nor any malafide in passing the impugned order and I do not see any reason to interfere with the same. The writ petition is, accordingly, dismissed with no order as to costs.