Ashim And Bros Asso. vs Union Of India And Anr
2013 Latest Caselaw 4753 Del

$~9
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of Decision: 11.10.2013

+                      W.P.(C) 2695/2012 & CM No.5805/2012

       ASHIM AND BROS ASSO.
                                                         ..... Petitioner
                            Through:    Mr. Rakesh Bhugra and Mr. E.
                                        Ahmed, Advs.
                            versus

       UNION OF INDIA AND ANR
                                                           ..... Respondent
                            Through:    Mr. Saqib, Adv.

       CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

                                     JUDGEMENT

V.K. JAIN, J. (Oral)

The petitioner before this Court was granted registration for recruitment of workers for overseas employment. The aforesaid registration was valid for a period of five years i.e. till 17.8.2011. On 5.5.2011, the petitioner submitted an application to respondent no.2 - Protector General of Emigrants for renewal of its registration certificate. The said application was rejected vide order dated 18.8.2011 on the sole ground that the petitioner did not deploy 10% of 1000 workers during current validity, which showed poor performance. The petitioner preferred an appeal against the aforesaid order dated 18.8.2011. The

appeal, however, was rejected by the Appellate Authority vide order dated 30.1.2012. During the course of hearing before the Appellate Authority, the learned counsel for the petitioner contended that low off- take of the quota was a result of the recession and since there was declining trend in the number of persons emigrating from India for the purpose of overseas employment. It was further contended by him that 10% requirement was not laid down in the Emigration Act, 1983 and, therefore, the refusal to renew the registration was illegal. The contention, however, was rejected by the Appellate Authority on the ground that so long as the Memo dated 4.7.2008 was not amended, withdrawn or struck down by the Appropriate Authority, the guidelines contained therein will continue to hold good, and the office of Protector General of Emigrants will follow them. Being aggrieved form the aforesaid order, the petitioner is before this Court seeking the following reliefs:

a. pass a writ of appropriate nature, order of direction, directing to set aside the order dated 18.8.2011 passed by the Protector General of Emigrants/ respondent no.2 while rejecting the renewal application of the registration certificate of the petitioner; and b. pass a writ of appropriate nature, order of direction, directing to set aside the order dated 30.01.2012 passed by the Appellate Authority - respondent no.1 while dismissing the appeal u/s 23 of Emigration Act 1983 rejecting the renewal application of the registration certificate of the petitioner.

2. In their counter affidavit, the respondents have stated that the Memo dated 4.7.2008 was issued considering the objective behind the enactment of Emigration Act, 1983 which is a beneficial legislation enacted for the welfare and betterment of workers emigrating from India. It is further stated in the counter affidavit that the quota for the petitioner was set out at deployment of 1000 workers in terms of the application made by him, and in view of this Memo dated 4.7.2008, it was mandatory for every recruiting agent to recruit and deploy at least 10% of the total quota as assigned to him, in order to be eligible to have his registration certificate renewed.

3. The OM dated 4.7.2008 issued by Government of India, with respect to renewal of the registration certificate issued under Section 10 of the Emigration Act, to the extent it is relevant, reads as under:

(i) Deployment of one-third of the capacity means that the Recruiting Agent should have deployed one third of the capacity of workers in the Registration Certificate is 300 workers, its one-third will be 100 workers and if the capacity is 1000 or 1000+ workers, its one- third will come to 330 workers.

(ii) Initially, this calculation used to be done for the validity period after last renewal, i.e. current validity whose extension is sought through renewal. However, on the representation from various quarters, deployment of the workers as one-third is

taken into account from the date of issuance of the Registration Certificate. For example, if renewal is sought now for Registration Certificate which has been issued during the year 1996 for 300 workers, its one third will be 100 workers, and in case, the capacity of workers is enhanced from 300 to 1000 or 1000+ workers during the year say 2000, its one third will be taken as 330 workers computed from 1996 onwards.

(iii) However, deployment during current validity, extension of which is sought through renewal application, the performance should be at least ten percent of the Registration Certificate capacity (30 or 100 as the case may be).

4. The learned counsel for the petitioner submits that the recruitment for deployment of at least 10% to the extent of the sanctioned capacity is not stipulated either in sections 11 and 13 of Emigration Act nor any of the Rules framed thereunder. He further states that no such requirement could have been stipulated without either amending the statutory provisions or by framing appropriate rules in this regard. I, however, find no merit in the contention. Section 13 of the Emigration Act, to the extent it is relevant, provides that the certificate may be renewed from time to time. The renewing authority, therefore, is given discretion in the matter of renewal of registration which cannot be sought as a matter of right. Of course, the discretion vested in the renewing authority must

be exercised on considerations which are germane and relevant to the objectives sought to be achieved, meaning thereby that the renewal should be refused only for the reasons which are objective, cogent and fair. The condition stipulated in the OM, requiring deployment of at least 10% of the registration certificate capacity cannot be said to be illogical or arbitrary or unreasonable. The recruiting agent registered under the provisions of the Act is required to disclose the every recruitment made through him through the mechanism provided under the Act and the rules framed thereunder. The disclosure of deployment is mandatory, since that would discourage emigration of workers in an unauthorized manner in contravention of the provisions of the Act and the Rules. The purpose of ensuring deployment to the extent of at least 10% of the registration certificate capacity is that all the deployments made by the recruiting agents are duly reported. In the absence of such a stipulation, the recruiting agent may possibly engage into unauthorized deployment of workers in contravention of the provisions of the Act and the Rules. Once he knows that unless a specified percentage of the registration certificate capacity is utilized and disclosed to the concerned authorities in accordance with the provisions of the Act and the Rules, he would not resort to such unauthorized deployment. In any case, the learned counsel for the respondents has drawn my attention to Section 38 of the Emigration Act which empowers the Central Government to give directions, inter alia, to the Registering Authority and the Protector of Emigration as to carrying into execution in the provisions of the Act. The OM dated 4.7.2008 has been issued by the Government of India, Ministry of Overseas and Indian Affairs and, therefore, has to be considered as a direction in terms of Section 38 of the Act which is

binding upon the parties to whom direction is given. Therefore, the OM cannot be said to be illegal in any manner the same having been issued in exercise of statutory powers of Government of India.

5. The learned counsel for the respondent also points out that in fact vide OM dated 4.7.2008, the condition with respect to deployment in terms of the capacity has been relaxed in the sense that earlier requirement was deployment of 1/3rd of the capacity during its last validity which now has been reduced only to 10% of the registration certificate capacity from the date of the registration itself. The norms adopted by the respondent cannot be said to be unfair, arbitrary or unreasonable in any manner. Moreover, as rightly pointed out by the learned counsel for the respondents, even the OM dated 4.7.2008 has not been challenged in the writ petition and so long as the said OM is not challenged and the challenge does not succeed, the Protector General of Emigrants as well as the Registering Authority are duty bound to comply with the same.

For the reasons stated hereinabove, I find no merit in the writ petition and the same is hereby dismissed. There shall be no orders as to costs.

V.K. JAIN, J OCTOBER 11, 2013/rd