S.B.International vs Union Of India And Anr
2013 Latest Caselaw 4771 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 11.10.2013
+      W.P.(C) 2702/2012
       S.B.INTERNATIONAL
                                                            ..... Petitioner
                           Through:     Mr. Rakesh Bhugra, Mr. E. Ahmed,
                                        Advs.
                           versus

       UNION OF INDIA AND ANR
                                                             ..... Respondent
                           Through:     Mr. Saqib, Adv. for R-1&2

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

                               JUDGMENT

V.K.JAIN, J. (ORAL)

On 27.9.2004, the petitioner was granted a registration certificate in terms of Section 11 of the Emigration Act, 1983. The said registration was valid for a period of five years i.e. 27.9.2004 to 26.9.2009. On receipt of a complaint from one Mr. Sudarshan alleging therein that he had applied for the post of plumber but the R.A. had deployed him for the post of Ironsmith with RAK Investment Authority/MR Group Building Cont., LLC, UAE and since validity of his visa had already expired when he landed in the airport on the midnight of 18.6.2008, he was sent back and his passport was retained. He claimed to have paid a sum of Rs.80,000/- to the recruiting agent. Vide order dated 29.1.2010/1.2.2010, the Protector General of Emigrants/ Registering Authority, in exercise of the powers conferred upon him under Section 14(j) of the Emigration Act cancelled the registration of the petitioner and also

required him to show cause as to why his bank guarantee should not be forfeited.

2. The petitioner preferred an appeal under Section 23 of the Emigration Act against the aforesaid order dated 1.2.2010. The appeal, however, was dismissed vide order dated 14.7.2010. The bank guarantee of the petitioner was later forfeited vide order dated 3.1.2011. The petitioner filed a writ petition being W.P(C) No.1634/2011 before this Court challenging the order 1.2.2010 as also the order of the Appellate Authority dated 14.7.2010. Vide order dated 6.5.2011, this Court set aside the order of the Appellate Authority dated 14.7.2010 and remanded the matter back to it with direction to dispose of the appeal on merit. It was further directed that the Appellate Authority shall also pass consequential order regarding bank guarantee furnished by the petitioner. The petitioner who was also given liberty to avail such remedy as may be available to it in law.

3. Pursuant to the aforesaid order passed by this Court, the appeal filed by the petitioner was disposed of by the Appellate Authority vide order dated 23.1.2012. The Appellate Authority remanded the matter back to the Protector General of Emigrants/ Registering Authority to pass a speaking order. Pursuant thereto, respondent no.2 - Protector General of Emigrants passed an order dated 16/21.2.2012 forfeiting the bank guarantee furnished by the petitioner. A perusal of the order passed by the Appellate Authority on 23.1.2012 would show that the earlier order was restricted to the issue of forfeiture of the bank guarantee meaning thereby that the Appellate Authority had upheld the order cancelling the registration certificate of the petitioner.

4. It is an admitted case that the registration certificate issued to the petitioner expired by afflux of time on 26.9.2009. The show cause notice came to be issued to the petitioner only on 6.1.2010 which was more than three months after the registration certificate had already been expired by

afflux of time. There could be no question of cancelling the registration certificate which had already expired by afflux of time. The exercise undertaken by the respondent no.2 vide notice dated 6.1.2010 was, therefore, a superfluous exercise considering that the registration certificate which he was seeking to cancel had already outlived its life. To this extent, the impugned orders need to be set aside. Ordered accordingly.

5. As regards, the order dated 16/21.2.2012, directing encashment of the bank guarantee, the learned counsel for the petitioner fairly concedes that since no appeal has been preferred against the said order, which otherwise is an appealable order, he would not press the writ petition on the said order. The writ petition stands accordingly dismissed as withdrawn. It is made clear that withdrawal of the writ petition shall not in any way come in the way of the petitioner challenging the order dated 16/21.2.2012 to the extent it pertains to encashment of the bank guarantee by way of an appeal. It shall be open to the petitioner to claim the benefit of the proviso to sub section 2 of Section 23 before the Appellate Authority on the ground that he was bonafidely agitating his grievance with respect to the order dated 16/21.2.2012 before this Court by way of present writ petition.

The learned counsel for the respondent has drawn my attention to the proviso of section 24 of the Act which provides for punishment of offences in case of certain contraventions. If the petitioner has committed any such act which entails punishment under the aforesaid provisions, it shall be open to the respondent to proceed against it in accordance with law.

The writ petition stands disposed of in terms of this order.

There shall be no orders as to costs.

V.K. JAIN, J

OCTOBER 11, 2013/rd