M/S J.M. International vs Uoi And Anr
2011 Latest Caselaw 4186 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 29th August, 2011.

+                                 W.P.(C) 6284/2011

           M/S J.M. INTERNATIONAL                 ..... Petitioner
                         Through: Mr. Rakesh Bhugra & Mr. Ehtasham
                                  Ahmad, Advs.

                                         Versus
           UOI AND ANR                                        ..... Respondents
                              Through:      Mr. Neeraj Chaudhary & Mr. Akshay
                                            Chandra, Advs. for UOI.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.         Whether reporters of Local papers may              Yes
           be allowed to see the judgment?

2.         To be referred to the reporter or not?             Yes

3.         Whether the judgment should be reported            Yes
           in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner was granted a Registration Certificate under Section 11

of the Emigration Act, 1983 to carry on the business of recruitment of

persons for overseas employment. The term of the said certificate was till

4th July, 2010. The petitioner, if desirous of renewal of the said certificate,

was under the first proviso of Section 13 of the Act required to make an

application therefor not less than three months prior to the date on which the

certificate but for such renewal would cease to be valid. The petitioner was

as such required to apply for renewal latest by 4 th April, 2010. The

petitioner however applied for renewal on 29th May, 2010 i.e. after a delay

of 54 days. The application of the petitioner was rejected by the Registering

Authority vide order dated 13th July, 2010 for the reason of having not been

preferred within time.

2. The second proviso to Section 13 of the Act empowers the

Registering Authority to entertain application for renewal made at any time

during the period of three months prior to the date on which the certificate

would, but for renewal cease to be valid if the applicant satisfies the

Registering Authority that he had sufficient cause for not making such

application before the said time.

3. It was the case of the petitioner that he could not make an application

for renewal within the prescribed time for the reason of being indisposed.

The petitioner in this regard filed with the Registering Authority a medical

certificate dated 29th May, 2010 of a private hospital to the effect that he was

under treatment for Diabetes Mellitus & Hypertension with acute Abdomen

pain from 3rd April, 2010 till 29th May, 2010.

4. The Registering Authority held that the medical certificate was

general in nature, not of hospitalization and did not constitute sufficient case

for condonation of delay.

5. The petitioner preferred an appeal against the refusal of renewal and

which appeal has been dismissed by the Appellate Authority vide order

dated 15th March, 2011. The Appellate Authority has also held that the

medical certificate does not show that the petitioner was hospitalized or was

so incapacitated so as to be unfit to apply for renewal. It was further held

that if such grounds were to be entertained, it would defeat the provisions of

Section 13 of the Act. Accordingly, the appeal was also dismissed.

6. The counsel for the petitioner relies upon order dated 5th May, 2011 of

this Court in W.P.(C) No.2986/2011 titled M/s Access Partners Vs. Union

of India where for the reason of the petitioner therein having produced a

medical certificate of suffering from typhoid, the Registering Authority was

directed to consider the application for renewal in accordance with law.

7. The counsel for the respondents appears on advance notice and

considering the nature of the relief claimed, need is not felt to issue formal

notice or to call for a reply and the counsels have been heard finally.

8. It has been enquired from the counsel for the respondents as to what is

the basis for requiring renewal to be applied for three months in advance.

The counsel for the respondents informs that the processing of the

application requires about three months time and as such, to allow continuity

in operations by the certificate holder, renewal is required to be applied for

three months in advance.

9. It has further been enquired from the counsel for the respondents as to

whether there is any limit on the number of certificates which are granted in

a particular city or zone or locality. The answer is in the negative.

10. It thus appears that for the delay if any, it is the certificate holder

himself / herself who suffers inasmuch as upon the certificate lapsing, he

would not be able to carry on the business. No prejudice is found to be

caused to the respondents or to the applicants for overseas employment for

the reason of delay in applying for renewal. It is also not as if the

respondents in such a case would be required to process the application

before the three months time elapses. In fact upon the application being filed

belatedly, the applicant / certificate holder can be imposed with further

penalties for any inconvenience which may be caused to the department in

this regard. Similarly, if the bank guarantee earlier furnished has lapsed or

any other expenses are required to be incurred in processing the application,

the same can also be demanded from the applicant.

11. I have in this regard also enquired as to why the petitioner cannot

apply for a fresh certificate. As per Section 14(6) of the Act, only in the

event of cancellation of a certificate under Section 14(1), is the certificate

holder prohibited from applying again, for a period of two years from such

cancellation. However, such bar would not apply in the case of a certificate

holder who allows his certificate to lapse.

12. The counsel for the petitioner has however stated that the procedure

required to be followed on a fresh application would be much longer than

the procedure for renewal.

13. It is up to the registering authority to, if of the opinion that owing to

the certificate holder having made his application for renewal belatedly and /

or having allowed his certificate to lapse and / or sufficiently long time

having elapsed, the procedure as in case of a fresh application is required to

be followed, to follow the said procedure even while renewing the

application, to ensure that all the safeguards which the certificate holder is to

observe are observed.

14. Undoubtedly, the medical certificate produced by the petitioner is of a

general nature and does not show that he was totally incapacitated from

doing anything or that he had shut down his business also at that time.

However, it is also not the finding that the medical certificate is false and /

or the petitioner was not indisposed. An illness can certainly affect the

efficiency of a person.

15. It is therefore deemed expedient to set aside the orders insofar as

rejecting the application for renewal for the reason of the petitioner having

not applied therefor within the prescribed time and to direct the respondents

to deal with the application of the petitioner on merits and in accordance

with the observations hereinabove. The petition is accordingly allowed. The

orders aforesaid are set aside. The delay in applying for renewal is

condoned. The respondents are now directed to decide the application of the

petitioner for renewal on merits.

No order as to costs.

Dasti.

CM No.12628/2011 (u/S 151 CPC for exemption) Allowed, subject to just exceptions.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 29, 2011 'gsr'