Delhi High Court
M/S Hargobind Travels vs Union Of India & Ors on 8 September, 2015
Author: Rajiv Sahai Endlaw
$~13.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.8188/2013
M/S HARGOBIND TRAVELS ..... Petitioner
Through: Mr. Rahul singh and Mr. Varun Lal,
Advs.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Amit Mahajan with Mr. Nitya
Sharma, Advs. for UOI.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 08.09.2015
1. The petition impugns the order dated 16th September, 2013 of the
Secretary, Ministry of Overseas Indian Affairs of the respondent No.1
Government of India exercising powers as an Appellate Authority under
Section 23 of the Emigration Act, 1983, of dismissal of appeal preferred by
the petitioner against the order dated 31st January, 2013 of the respondent
No.2 Protector General of Emigrants (PGE), in exercise of powers under
Rule 23 of the Emigration Rules, 1983, of encashing the Bank Guarantee
(BG) furnished by the petitioner.
2. Notice of the petition was issued and a counter affidavit has been filed
by the respondents. The counsels have been heard.
3. It is the case of the petitioner, (i) that it was registered on 22 nd July,
2001 as a Recruiting Agent, as defined under Section 2(l) of the Emigration
Act, to recruit workers from India for the purposes of overseas employment;
(b) that it had furnished the Bank Guarantee aforesaid as security, as
required to be furnished while registering as a Recruiting Agent; (c) it was
carrying on business as a Recruiting Agent from Chandigarh; (d) notices
dated 1st November, 2011 and 9th December, 2011 were issued by the
respondent no.2 PGE asking the petitioner to show cause as to why its
Registration Certificate should not be cancelled for the reasons given
therein; (e) though the petitioner filed a reply to the said show cause notices
(no copy of which has been filed along with the petition and the receipt
whereof is denied by the respondents) but the respondent no.2 PGE vide
order dated 4th May, 2012 cancelled the Registration Certificate of the
petitioner and issued further notices to the petitioner to show cause as to
why the BG submitted by it should not be forfeited and vide order dated 31st
January, 2013 ordered invoking of BG and encashed the BGs for Rs.10 lacs;
and, (f) that the petitioner preferred an appeal under Section 23 of the
Emigration Act to the Secretary, Ministry of Overseas Indian Affairs,
Government of India but which was also dismissed vide impugned order
dated 16th September, 2013.
4. The respondents, in their counter affidavit, have pleaded that the
petitioner failed to reply to any of the show cause notices and did not even
submit any documents of having satisfied all the claims of the workers
recruited by it and since the petitioner had not taken any re-course against
the order of cancellation of his registration also and the BG furnished by him
was lapsing, it was deemed appropriate to encash the same to satisfy the
claims if any of the workers against the petitioner.
5. Now a period of more than three years having passed since the
cancellation of the Registration Certificate of the petitioner and a period of
more than 2 ½ years having passed since the invocation of the BG, I have
enquired from the counsel for the respondents whether any claims have been
preferred before the respondents against the petitioner and whether out of
the encashed amount of Rs.10 lacs, any payments been made to any of the
workers.
6. The counsel for the respondents states that he has no instructions in
this regard.
7. A reading of Rule 23 supra makes it clear that the forfeiture of the
security in the form of BG furnished, is only for the purposes of utilisation
of the said amount for such purpose and in such manner as may be specified
in the order of forfeiture. In the present case, since the petitioner was
uncommunicado inspite of its Registration Certificate having been cancelled
and the BG was also to lapse, no fault can be found in the decision of the
respondents to invoke and encash the BG to satisfy the claims if any as may
arise against the petitioner. However, the amount of BG, under the said
Rule, is not to enrich the respondents and in my opinion, if the respondents
have till date not received any claim and / or if the possibility of any such
claim being made in future does not exist with lapse of time, the respondents
would be liable to refund / account for the said amount to the petitioner.
8. Accordingly, this petition is disposed of with the direction to the
respondents, to determine whether any claims out of the said sum of Rs.10
lacs have been made as yet or not and / or whether the possibility of any
such claims being made in future remains and to pass a reasoned order in
this regard. If the respondents are of the opinion that any information from
the petitioner is required in this regard, the respondents shall, within eight
weeks hereof, issue a notice to the petitioner seeking such information as
may be required by the respondents. If the petitioner fails to furnish the
information, the respondents shall be entitled to draw adverse inference
against the petitioner. Else, the respondents shall pass a reasoned order as
aforesaid within a period of nine months herefrom.
9. Needless to state that if in the said determination it is found that no
claims out of the said sum of Rs.10 lacs have been made or are likely to be
made in future, the said amount or any part thereof shall be refunded to the
petitioner; conversely if the said determination is against the petitioner, the
petitioner would have remedies thereagainst.
No costs.
Copy of this order be given dasti under signature of Court Master.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 08, 2015
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