Delhi High Court
Malkit Singh Bamrha vs Union Of India & Ors on 5 February, 2019
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9263/2016
MALKIT SINGH BAMRHA ..... Petitioner
Through: Mr Pranav Rishi, Mr Vinod
Kumar and Ms Astha Sharma,
Advocates alongwith petitioner
in person.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr Roshan Lal Goel and Ms
Anju Gupta, Advocates for
UOI.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 05.02.2019
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia, praying
that directions be issued to the respondents to disburse a sum of
`3,00,000/-, which was collected by the Protector General of
Emigrants (PGE) by forfeiture of the bank guarantee submitted by M/s
Overseas Travel and Placement Services, in favour of the petitioner.
2. The petitioner claims that he had paid a sum of `12 lakhs to M/s
Overseas Travel and Placement Services, which was a Registered
Recruitment Agent (hereafter 'the RA'), in order to send his relatives
for employment overseas. He claims that the RA failed to discharge
his obligations and did not send the relatives of the petitioner abroad
as promised by him.
3. In view of the above, the petitioner filed a complaints dated
22.12.2009 and 24.02.2010 against the RA with the PGE. It is also
apparent that there are several complaints made against the RA. In
view of the above complaints, by an order dated 14.03.2011, the PGE
cancelled the registration of the RA under the provisions of the
Emigration Act, 1983 (hereafter 'the Act') and further invoked the
bank guarantee furnished by the RA. A perusal of the said order
indicates that one of the principal reasons for the action was the
complaints received by the PGE, including complaints made by the
petitioner.
4. Before proceeding further, it would be relevant to refer to
Section 33 of the Act, which provides for submission of a security by
an RA. The said Section is quoted below:-
"33. Provision as to security.--
(1) Any security or other financial provision which
may be required to be made under this Act shall be
reasonable having regard to the purpose for which such
security or other financial provision is required to be
made.
(2) The prescribed authority may, after giving notice in
the prescribed manner to a person who has furnished
any security for any purpose and after giving to such
person an opportunity to represent his case, by order in
writing, direct that the whole or any part of such
security may be forfeited for being utilised for such
purpose and in such manner as may be specified in the
order.
(3) Where it appears to the prescribed authority that the
security furnished by any person under this Act for any
purpose has, for any reason, become inadequate, or has
ceased to be available for any reason whatsoever, the
prescribed authority may, after giving him an
opportunity to represent his case, by order in writing,
require such person to furnish such additional security
or, as the case may be, such fresh security as may be
specified in the order."
5. It is apparent from the plain reading of Sub-Section (2) of
Section 33 of the Act that the security furnished by a RA can be
forfeited for being utilised in such manner, as may be specified in the
order forfeiting such security.
6. Rule 23 of the Emigration Rules, 1983 (hereafter 'the Rules')
also contains provisions for forfeiture of the security deposited. Rule
23 of the Rules is set out below:-
"23. Forfeiture of security deposit.--Where the
competent authority or the registering authority has
reason to believe that it is expedient to forfeit the whole
or any part of security furnished by any person for
being utilised for such purpose and in such manner as
may be specified in the order, he may, after giving a
notice to this effect to such person and thereafter giving
him an opportunity to represent his case, by order in
writing, forfeit the whole or any part of the security."
7. It is, at once, clear from the plain reading of Section 33(2) of the
Act and Rule 23 of the Rules that the respondents cannot forfeit the
security without indicating the purpose and without utilising the same
for the purpose for which the security was forfeited. It is not disputed
in the present case that the security was furnished by the RA for due
performance of its obligation, and the same has been forfeited since
there were complaints that the RA had overcharged money from
various persons.
8. In view of above, the action of the PGE in invoking the bank
guarantee cannot be faulted. However, the PGE was required to
clearly state the purpose for which such bank guarantee was being
encashed. He is also obliged to ensure that the money collected by
forfeiture of the security is utilised for the said purpose. Since in the
present case, the bank guarantee furnished by the RA was invoked on
account of the complaints of overcharging the amounts from various
intending emigrants, it would be necessary for the respondents to
ensure that the sums are also utilised for redressal of the said
complaints. Plainly, the respondents cannot withhold the said money
and appropriate the said funds, as that would militate against the
provisions of Section 33(2) of the Act and Rule 23 of the said Rules.
9. Insofar as the petitioner is concerned, the relief as sought for
cannot be granted. The question, as to how the sums recovered from
the RA by forfeiture are required to be utilised, rests with the PGE.
The respondents are required to not only consider the petitioner's case,
but also the case of other complainants or other persons who are
entitled to refund of the amount overcharged by the RA. This Court is
not inclined to examine the entitlement of the petitioner or any other
complainant in these proceedings; the same is required to be
considered by the respondents.
10. In view of the above, the present petition is disposed of by
directing the respondents to examine the various complaints, including
those lodged by the petitioner and disburse the amount collected by it
in an equitable manner.
11. The parties are left to bear their own costs.
12. Order dasti under signatures of the Court Master.
VIBHU BAKHRU, J
FEBRUARY 05, 2019
MK
