Y.P. Baiju vs Union O India
2021 Latest Caselaw 2754 Ker

        

 
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

        THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR

   WEDNESDAY, THE 7TH DAY OF JUNE 2017/17TH JYAISHTA, 1939

                 WP(C).No. 16297 of 2017 (J)
                 ----------------------------


PETITIONER(S):
-------------

            Y.P. BAIJU,
            AGED 48 YEARS, S/O.LATE PAVITHRAN,
            PROPRIETOR,
            M/S.SKYLINK INTERNATIONAL,
            NO.55/346, VENUS CHAMBERS,
            KANNANTHODATHU LANE,
            VALANJAMBALAM,
            ERNAKULAM.


           BY ADVS.SRI.V.VENUGOPALAN NAIR
                    SRI.C.UNNIKRISHNAN (KOLLAM)

RESPONDENT(S):
--------------

          1.UNION O INDIA,
           REPRESENTED BY THE SECRETARY,
           MINISTRY OF EXTERNAL AFFAIRS,
           NEW DELHI-110 001.

          2.THE PROTECTOR GENERAL OF INDIA,
           AKBAR BHAVAN, CHANKYAPURI,
           NEW DELHI-110 021.

          3.BINDU N.NAIR,
           PROTECTOR OF EMIGRANTS IN CHARGE,
           3RD FLOOR, RPO BUILDING,
           PANAMPILLI NAGAR,
           KOCHI-682036.


           R1&R2 BY SRI.N.NAGARESH,ASSISTANT SOLICITOR GENERAL


       THIS WRIT PETITION (CIVIL)  HAVING COME UP FOR
       ADMISSION ON 07-06-2017, THE COURT ON THE SAME DAY
       DELIVERED THE FOLLOWING:
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WP(C).No. 16297 of 2017 (J)
----------------------------

                           APPENDIX

PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1 :    TRUE COPY OF THE REGISTRATION CERTIFICATE
                NO.B-0054/KER/PER/1000+/4 < /7758/2006 DATED
                25-1-2021.

EXHIBIT P2 :    TRUE COPIES OF VISAS ISSUED BY THE MALAYSIAN
                EMBASSY CHENNAI.

EXHIBIT P3 :    TRUE COPY OF THE INJUNCTION ORDER PASSED BY
                THE HON'BLE VACATION COURT ERNAKULAM IN IA
                1744/2017 DATED 19-4-2017.

EXHIBIT P4 :    A TRUE COPY OF THE UNDERTAKING OBTAINED BY THE
                3RD RESPONDENT FROM THE PETITIONER ON
                27-4-2017.

EXHIBIT P5 :    A TRUE COPY OF THE ORDER DATED 5-5-2017 IN
                WPC.NO.15427/2017(C).

EXHIBIT P6 :    A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE
                PETITIONER BEFORE THE 2ND RESPONDENT ON
                2-5-2017.

EXHIBIT P7 :    A TRUE COPY OF THE DOCUMENT DOWNLOADED FROM
                THE SITE OF THE RESPONDENTS SHOWING THAT THE
                LICENSE OF THE PETITIONER IS SUSPENDED ON
                13-5-2017.

EXHIBIT P8 :    A TRUE COPY OF THE DEMAND LETTER DT 8TH APRIL
                2017 ISSUED BY A FOREIGN EMPLOYER TO THE
                PETITIONER.

EXHIBIT P9 :    A TRUE COPY OF THE SHOW CAUSE NOTICE DATED
                06.04.2017 AND 11.04.2017 ISSUED BY THE 3RD
                RESPONDENT TO THE PETITIONER

EXHIBIT P10 :   A TRUE COPY OF THE REPLY SUBMITTED BYT HE
                PETITIONER TO EXT P9 SHOW CAUSE NOTICE DATED
                11.04.2017 & 06.04.2017

EXHIBIT P11 :   TRUE COPY OF THE LETTERS SUBMITTED BY SOME OF
                THE COMPLAINANTS BEFORE THE 3RD RESPONDENT
                SHOWING WITHDRAWAL OF THEIR COMPLAINTS DATED
                09.05.2017

EXHIBIT P12 :   TRUE COPY OF THE SUSPENSION ORDER DATED
                02.05.2017
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WP(C).No. 16297 of 2017 (J)
----------------------------

RESPONDENT(S)' EXHIBITS
-----------------------

EXHIBIT R1(A) :   TRUE COPY OF THE COMPLAINTS (20 IN NUMBERS)

EXHIBIT R1(B) :   TRUE COPY OF THE SHOW CAUSE NOTICE DATED
                  15.5.2017

EXHIBIT R1(C) :   TRUE COPY OF THE SUSENDISON ORDER DATED
                  02.05.2017

EXHIBIT R1(D) :   TRUE COPY OF THE ADVERTISEMENT PUBLISHED BY
                  THE PETITIONER IN THE MALAYALA MANORAMA
                  DAILY DATED 24.08.2016

EXHIBIT R1(E) :   TRUE COPY OF THE INSTRUCTIONS OF THE
                  MINISTRY OF EXTERNAL AFFAIRS

EXHIBIT R1(F) :   TRUE COPY OF RECEIPT  DATED 06.10.2016

EXHIBIT R1(G) :   TRUE COPY OF THE FAKE DEMAND LETTER ON THE
                  BASIS OF WHICH THE PETITIONER CARRIED OUT
                  THE RECRUITMENT

EXHIBIT R1(H) :   TRUE COPY OF THE LETTER DATED 11.05.2017
                  ISSUED BY THE FOREIGN EMPLOYER

EXHIBIT R1(I) :   TRUE COPY OF THE WEBSITE INFORMATION ISSUED
                  BY THE HIGH COMMISSION OF INDIA IN MALAYSIA

EXHIBIT R1(J) :   TRUE COPY OF THE ADVERTISEMENT PUBLISHED IN
                  MALAYALAM MANORAMA DAILY DATED 10.05.2017

EXHIBIT R1(K) :   TRUE COPY OF THE DEMAND LETTER DATED
                  20.02.2017

EXHIBIT R1(L) :   TRUE COPY OF THE COMPLAINT DATED 16.5.2017


                                            TRUE COPY




                                           P.S. TO JUDGE
EL



                   P.B. SURESH KUMAR, J.

           ------------------------------------------

                 W.P.(C) No.16297 of 2017

           ------------------------------------------

           Dated this the 7th day of June, 2017


                         JUDGMENT

Ext.P12 order of suspension-cum-show cause

notice issued to the petitioner by the second respondent

invoking his powers under Section 14(2) of the Emigration

Act ('the Act') is under challenge in this writ petition.

2. The petitioner is a recruiting agent registered

under Section 10 of the Act. It is alleged by the second

respondent in Ext.P12 notice that several complaints have

been received against the petitioner; that notices have

been issued to the petitioner for having violated the

provisions contained in Section 24(f) and 24(g) of the Act;

that the petitioner, instead of settling the complaints, has

been reported to threaten some of the complainants; that

the Commissioner of Police, Kochi has been requested, in

the circumstances, to register an FIR against the petitioner

and that therefore, the petitioner does not appear to be a

fit person to continue to hold the certificate of

registration. As per Ext.P12 order of suspension-cum-

show cause notice, the registration of the petitioner has

been suspended for a period of thirty days and he was

directed to show cause within fifteen days as to why the

suspension of registration should not be extended till the

determination of the question as to whether the

registration should be cancelled. The petitioner challenges

Ext.P12 order of suspension-cum-show cause notice in this

proceedings under Article 226 of the Constitution, on three

grounds. The first ground of the petitioner is that before

issuing an order in the nature of Ext.P12, the second

respondent was obliged to comply with the provisions

contained in sub section (5) of Section 14 of the Act and

since the same has not been done, the order is without

jurisdiction. The second ground is that an order in the

nature of Ext.P12 should not have been passed without

notice to the petitioner. The third ground is that the order

infringes the fundamental rights guaranteed to the

petitioner under Article 19(1)(g) of the Constitution.

3. Heard the learned counsel for the petitioner

as also the learned Assistant Solicitor General appearing

for the second respondent.

4. I am conscious of the fact that the petitioner

has an alternative remedy against the impugned order by

way of appeal under Section 23 of the Act. However, I do

not propose to relegate the petitioner to avail the said

alternative remedy as the petitioner challenges the

impugned order also on the ground that the second

respondent has no jurisdiction to pass such an order.

Section 14 of the Act dealing with cancellation, suspension

etc. of the certificate reads thus:

Section 14: Cancellation, suspension, etc., of a certificate

(1) The registering authority may cancel any certificate on any

one or more of the following grounds and on no other ground,

namely:--

(a) that having regard to the manner in which the holder of the

certificate has carried on his business or any deterioration in his

financial position, the facilities at his disposal for recruitment, the

holder of the certificate is not a fit person to continue to hold the

certificate;

(b) that the holder of the certificate has recruited emigrants for

purposes prejudicial to the interests of India or for purposes

contrary to public policy;

(c) that the holder of the certificate has, subsequent to the issue

of the certificate, been convicted in India for any offence

involving moral turpitude;

(d) that the holder of the certificate has, subsequent to the issue

of the certificate, been convicted by a court in India for any

offence under this Act, the Emigration Act, 1922 (7 of 1922), or

any other law relating to passports, foreign exchange, drugs,

narcotics or smuggling and sentenced in respect thereof to

imprisonment for not less than six months;

(e) that the certificate has been issued or renewed on

misrepresentation or suppression of any material fact;

(f) that the holder of the certificate has violated any of the terms

and conditions of the certificate;

(g) that in the opinion of the Central Government it is necessary

in the interests of friendly relations of India with any foreign

country or in the interests of the general public to cancel the

certificate.

(2) Where the registering authority, for reasons to be recorded

in writing, is satisfied that pending the consideration of the

question of cancelling any certificate on any of the grounds

mentioned in sub-section (1) it is necessary so to do, the

registering authority may, by order in writing, suspend the

operation of the certificate for such period not exceeding thirty

days as may be specified in the order and require the holder of

the certificate to show cause, within fifteen days from the date of

receipt of such order, as to why the suspension of the certificate

should not be extended till the determination of the question as

to whether the registration should be cancelled.

(3) A court convicting a holder of a certificate for an offence

under this Act may also cancel the certificate:

Provided that if the conviction is set aside in appeal or otherwise,

the cancellation under sub-section (3) shall become void.

(4) An order of cancellation of a certificate may be made under

sub-section (3) by an appellate court or by a court exercising its

powers of revision.

(5) Before passing an order cancelling or suspending a certificate

the registering authority or the court, as the case may be, shall

consider the question as to provisions and arrangements which

should be made for safeguarding the interests of emigrants and

other persons with whom the holder of the certificate had any

transactions in the course of his business as recruiting agent and

may make such orders (including orders permitting the holder of

the certificate to continue to carry on his business with respect

to all or any of such emigrants and other persons) as it may

consider necessary in this behalf.

(6) Where a certificate issued to any person has been cancelled

under this section, such person shall not be eligible to make any

application for another certificate under this Chapter until the

expiry of a period of two years from the date of such

cancellation.

Sub-section (5) of Section 14 provides that before passing

an order cancelling or suspending a certificate, the

Registering Authority or the court as the case may be,

shall consider the question as to provisions and

arrangements which should be made for safeguarding the

interests of emigrants and other persons with whom the

holder of the certificate had any transactions in the course

of his business as recruiting agent and may make such

orders (including orders permitting the holder of the

certificate to continue to carry on his business with respect

to all or any of such emigrants and other persons) as it

may consider necessary in this behalf. According to the

petitioner, in so far as the second respondent has not

complied with the provisions contained in the said sub-

section, he has no jurisdiction to issue an order under

Section 14(2) of the Act suspending the registration of the

petitioner. I am unable to agree with the said contention.

A close reading of Section 14 of the Act indicates beyond

doubt that the provisions contained in sub-section (5) are

intended to safeguard the interests of the emigrants and

other persons with whom the holder of the certificate had

transactions in the course of his business as recruiting

agent and the said provisions have nothing to do with the

proceedings against the recruiting agent. As such, the

contention of the petitioner that the impugned notice is

one issued without jurisdiction is only to be rejected.

5. As noted above, the second ground urged by

the petitioner is that a notice should have been issued

before issuing Ext.P12 order of suspension-cum-show

cause notice. I am unable to agree with this contention as

well. The scheme of the statute does not contemplate a

notice before an order of suspension. The statute only

contemplates a notice before cancellation of the certificate

of registration. Further, the scheme of the statute indicates

that a provision is incorporated in the statute to suspend a

certificate of registration to protect the interests of

emigrants and other persons with whom the holder of the

certificate would enter into transactions in the course of his

business as recruiting agent. As such, even principles of

natural justice do not require a notice before an order of

suspension contemplated in a statue of this nature.

6. The third ground urged by the petitioner, as

noted above, is that Ext.P12 order infringes the

fundamental rights guaranteed to the petitioner under

Article 19(1)(g) of the Constitution of India. The

fundamental right guaranteed to the petitioner under

Article 19(1)(g) to function as a recruiting agent is not an

absolute right. It is subject to the reasonable restrictions

imposed under the Act. There is, therefore, no merit in the

said contention as well.

In the result, the writ petition is disposed of

with a direction to the second respondent to finalise the

proceedings initiated against the petitioner as per Ext.P12

order of suspension-cum-show cause notice, expeditiously.

Sd/-

P.B. SURESH KUMAR JUDGE

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