SASHIKANTA MISHRA, J. The petitioner is aggrieved by non-
2. The petitioner is a doctor working under the
State Government and is due to retire on 31.01.2026. His
daughter resides in Singapore with her family. The
authorities for issuance of passport. In view of the
issuance of No Objection Certificate (NOC). Said application
2.1. The petitioner approached this Court in W.P.(C)
No.24138 of 2023 challenging such rejection. Said writ
circumstances as two years had elapsed since the rejection.
dropped. Such application of the petitioner was also
same ground as before. It is contended by the petitioner
Case No. 13 of 2012) has ended in acquittal and another
vigilance case being VGR Case No. 34 of 2013 is pending,
commenced. The petitioner had rendered all cooperation to
appear before the vigilance Court. On such facts, the
1. Quash the impugned rejection order
dated 12.07.2022 as at Annexure -2 and
order dated 21.03.2025 as at Annexure -
2. Direct order that the opposite party No.1
shall issue NOC to the petitioner for
enabling him to submit application to the
opposite party No.4 for issue of passport
as per law.
3. Pass such other orders as may be
deemed fit and proper in the interest of
justice.
And for this act of kindness the petitioner as in
duty bound shall every pray."
3. Counter affidavit has been filed by the State
(opposite party No.1) stating that while continuing as
Specialist in O & G at SDH, Talcher, the petitioner was
placed under suspension vide order dated 29.02.2012. He
was reinstated on 14.08.2013 and posted to DHH, Boudh,
where he joined on 24.09.2013 but remained
unauthorizedly absent since 28.09.2013 for which a
disciplinary proceeding was initiated against him vide
Department Memorandum No.10608/H Dated 01.06.2015,
which is pending. Besides, two more departmental
proceedings vide Department Memorandum No.19454/H
dated 26.07.2012 and 6375/H dated 03.03.2017 are
pending. Though the departmental proceeding vide
Memorandum No.19454/H has been dropped, yet the other
two departmental proceedings are pending.
4. Counter affidavit has also been filed by the
Regional Passport Officer (opposite party No.4). Paragraphs
4.23 to 4.25 under Chapter-IV of Passport Manual, 2020
have been referred to which provide that NOC is a
mandatory document to be obtained by the employee from
his employer/controlling authority and produced before the
passport authority during the time of processing of
passport application and this requirement cannot be
waived in respect of employees of Government, PSU and
statutory bodies. Since the writ petition has not been filed
against any statutory Rules and guidelines of Government
of India, the Passport Officer has no comments to offer.
5. The petitioner has filed a rejoinder stating that
the only purpose of his visiting Singapore is to visit his
daughter and grandchild. His right to travel abroad is a
fundamental right under Article-21 of the Constitution of
India, which cannot be taken away by an executive
instruction. The departmental proceedings in question are
continuing since 2015, but his request for grant of NOC
was rejected, which is in conflict with the law laid down by
the Constitution Bench of the Supreme Court in the case of
Maneka Gandhi v. Union of India1.
(1978) 1 SCC 248
6. Heard Mr. S. Mallik, learned counsel for the
petitioner; Mr. S.N. Pattnaik, learned Addl. Government
Advocate for the State and Mr. P.K. Parhi, learned DSGI
along with Ms. S. Patra, learned Central Government
Counsel for the Union of India.
7. Mr. Mallik would argue that the right to travel
abroad has been recognized as a fundamental right
guaranteed under Article 21 of the Constitution of India
and cannot be abrogated in the absence of any law. Here,
law means enacted law and therefore, a mere executive
order cannot curtail the fundamental right. Mr. Mallik
further argues that the departmental proceedings are
pending since 2015 and there is no likelihood of the same
being concluded in the near future. Mere allegation cannot
take the place of proof and therefore, the petitioner must be
presumed to be innocent. Such being the case, his right to
travel abroad cannot be abrogated. Mr. Mallik has cited the
judgment of the Supreme Court in the Case of Maneka
Gandhi (supra) and of this Court in the case of Nitin
Kapoor vs. State of Odisha (DGGI)2.
8. Mr. S.N. Pattnaik, learned Addl. Government
Advocate on the other hand submits that the government
in exercise of its executive power has issued a circular
dated 28.01.2014 to the effect that vigilance clearance can
be granted if there is no departmental proceeding or
contemplated and NOC can be issued by the Administrative
Department in the prescribed form without referring to the
Home Department. Since two disciplinary proceedings are
admittedly pending against the petitioner, NOC cannot be
issued in terms of the above circular.
9. Mr. P.K. Parhi, learned DSGI submits that as per
the requirement of the Passports Act,1967, the petitioner
being a Government employee is mandatorily required to
obtain no objection from his employer to travel abroad,
failing which his application for grant of passport cannot be
considered or processed. As regards grant of no objection,
2024(III) ILR-CUT-777
Mr. Parhi submits that the Government of India has no role
to play in the matter.
10. The facts of the case as laid are admitted. The
petitioner's application for issue of NOC was rejected on
12.07.2022 and 21.03.2025 on the same ground i.e.,
unauthorized absence since 28.09.2013 and pendency of
two disciplinary proceedings (three as per order dated
12.07.2022). No statutory Rules or guideline has been cited
by the Government empowering it to refuse NOC on the
ground of pendency of disciplinary proceeding. The only
thing that has been cited is a communication dated
28.01.2014 issued by the Special Secretary to Government
in Home Department, which is reproduced below:
"GOVERNMENT OF ODISHA
HOME DEPARTMENT
No. 3891/PPT Bhubaneswar Dated the 28.01.2014
From
Shri Lalit Das, IPS
Special Secretary to Government
To
All Departments of Government
Sub:- Issue of NOC (No Objection
Certificate) to Government Employee
for Indian passport.
It is seen that many departments are
referring No Objection Certificate (NOC) case to
Home Department for police verification and
clearance.
In order to avoid delay it is therefore
been decided that for Government employees of
different department will apply to their concerned
administrative department and the department will
get the vigilance clearance and if there is no
department proceeding is pending or contemplated
may issue NOC in form M without referring the
same to Home Department.
Yours faithfully,
Sd/-
Secretary to Government"
11. As can be seen from a reading of the quoted
letter, there is no positive order to the effect that NOC shall
not be issued if any disciplinary proceeding is pending. It
has been negatively stated that NOC would be issued if
there is no departmental proceeding. The question that
now falls for consideration is, whether it is legally
permissible for the Government to do so. To determine this,
it would be proper to note the consequences of such
condition. Thus, if a disciplinary proceeding is pending
against a government employee, no objection would not be
issued, which, in turn would imply that he cannot apply for
grant of passport. This further implies that he cannot travel
abroad. At this stage it would be apposite to observe that
there is nothing in the Passport Act which even remotely
suggests that pendency of disciplinary proceeding (or
vigilance case) would stand as an absolute bar for grant of
passport. However, clause-4.23 to clause-4.25 of the
Passport Manual, 2020 places certain conditions for an
applicant, if he happens to be a government employee. The
relevant clauses are reproduced hereinbelow.
"4.23. Government/PSU employees, et al., are required to
submit Identity Certificate, No Objection Certificate (NOC)
or Prior Intimation Certificate as per the prescribed pro-
forma at Annexure 'A', 'G' & 'H' of Appendix-1 for both
resh issue and re-issue of passports at the PIA which has
jurisdiction of their residential address. While the first
two documents have to be issued by the Controlling
Authority, the last option requires prior intimation of the
Controlling Authority by the employee about his/her
applying for a passport. The application shall contain
stamped receipt of the Personnel Department of the
employer Spouse and children (up to 18 years of age)
have the option to apply with IC for issue of a passport
on "no-PV" basis or in the normal course on "post-PV"
basis/"pre-PV basis".
4.24. The above requirement for IC/NOC/Prior Intimation
Letter shall not be waived in respect of Government/PSU
employees. Revised instructions on the subject were
issued to all Ministries and State Governments on 5th
October 2009 [Ref. Ministry's Circular No.
VI/401/1/5/2008 dated 05/10/2009 and
23/03/2010]. In re-issue cases where Prior Intimation
Letter is furnished, passport is issued on "pre-PV" basis
in order to ensure that he/she is not facing any
department enquiry/vigilance cases.
4.25. Government servants, who are not able to obtain
the Identity Certificate (Annexure 'A')/ "No Objection"
Certificate (Annexure-'G') from their concerned employer
and intend to get the passport can now get the passport
by submitting a self-declaration in Annexure-'H' that
he/she has given prior Intimation Letter to his/her
employer informing that he/she was applying for an
ordinary passport to a Passport issuing Authority."
12. This requirement of obtaining NOC for
submission along with the application for grant of Passport
has not been specifically questioned by the petitioner in the
present writ application and therefore, this Court does not
deem it proper to consider the legality/justifiability of such
condition.
13. On the facts and executive instructions as
referred above, it would now be proper to refer to the
settled position of law in this regard. This Court can, in the
present context do no better than to refer to the oft-quoted
and celebrated judgment of the Constitution Bench of the
Supreme Court of India in the case of Maneka Gandhi
(supra), wherein Article 21 received an extended meaning.
The following observations of the Supreme Court in the
said judgment are noteworthy.
"xxxxxxxxxxxxThe expression "personal liberty" in
Article 21 is of the widest amplitude and it covers a
variety of rights which go to constitute the personal
liberty of man and some of them have been raised to
the status of distinct fundamental rights and given
additional protection under Article 19. Now, it has
been held by this Court in Satwant Singh case [AIR
1967 SC 1836 : (1967) 3 SCR 525 : (1968) 1 SCJ 178]
that "personal liberty" within the meaning of Article
21 includes within its ambit the right to go abroad
and consequently no person can be deprived of this
right except according to procedure prescribed by law.
Prior to the enactment of the Passports Act, 1967,
there was no law regulating the right of a person to go
abroad and that was the reason why the order of the
Passport Officer refusing to issue passport to the
petitioner in Satwant Singh case [AIR 1967 SC 1836 :
(1967) 3 SCR 525 : (1968) 1 SCJ 178] was struck
down as invalid. It will be seen at once from the
language of Article 21 that the protection it secures is
a limited one. It safeguards the right to go abroad
against executive interference which is not supported
by law; and law here means "enacted law" or "state
law" (vide A.K. Gopalan case [1950 SCC 228 : AIR
1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] ). Thus,
no person can be deprived of his right to go abroad
unless there is a law made by the State prescribing
the procedure for so depriving him and the
deprivation is effected strictly in accordance with
such procedure. It was for this reason, in order to
comply with the requirement of Article 21, that
Parliament enacted the Passports Act, 1967 for
regulating the right to go abroad.xxxxxxxxxxxxxx"
14. As already stated, the Passport Act does not
place an absolute bar for travel abroad on the ground of
pendency of disciplinary proceedings (or criminal
proceedings). Letter dated 28.01.2014 cannot by any
stretch of imagination be treated as enacted law. However,
it serves to curb the right of a person to travel abroad albeit
indirectly, for without NOC, the employee cannot even
apply for passport leave alone being issued with one.
Therefore, this Court has no hesitation in holding that
letter dated 28.01.2014 serves to place an embargo on the
fundamental right of a citizen to travel abroad. It is
needless to mention that this, in effect amounts to
infringement of the right to liberty guaranteed under Article
-21 of the Constitution of India.
15. Viewed from another angle, the restriction
imposed by the State Government is unjustified also for the
reason that mere pendency or contemplation of disciplinary
proceeding cannot, under any circumstances, be treated as
proven guilt of the employee concerned. It would militate
against the fundamental tenet of criminal jurisprudence
that every person is presumed innocent until proven guilty.
This Court had the occasion of dealing with a similar
matter in the case of Ashok Kumar Sipani v. Union of
India and another3 wherein it was held as follows:
11. On a plain reading of the provision quoted above, it
would be clear that power has been conferred on the
authority to impound the Passport of a person, inter alia, on
the ground of pendency of a criminal case against him. The
use of word 'may" in Sub-section (3) clearly signifies that
the power so vested is discretionary and not to be
construed as mandatory. In fact, in the judgment of the
Allahabad High Court rendered in the case of Mohammad
Umar(supra), the very same interpretation was made in
the following words:-
"11. We find that the legislature under Section 10 (3) (e) of
the Passports Act, 1967 had deliberately used word 'may'
meaning thereby that in the eventualities enumerated
under Section 3 of the Passports Act, 1967 of the passport
officer by recording reasons can impound passport but it is
not necessary that in every case falling under Section
3 the passport officer is mandatorily required to impound
the passport. The legislature under Section 10 (3) (e) has
given power/discretion to the passport authority that if he
is satisfied then he can impound the passport of a person
on the ground of pending proceedings in relation to an
offence in the criminal court, therefore prior to passing the
order of impounding passport, the passport officer after
considering the facts and circumstances of each case has
to record reasons to arrive at a conclusion that due to
pending criminal proceedings in a criminal court, the
passport holder may misuse the passport for avoiding his
appearance before the court and can delay the conclusion
of the proceedings."
The Allahabad High Court further relied upon observations
made by the Supreme Court in the case of Suresh Nanda
v. CBI4 in its judgment. The following observations are
noteworthy:-
"That impounding of passport entails civil consequences
and in view of this, the Authorities are duty bound to give
opportunity of hearing to the person concerned.
There is no doubt on this fact that discretion is vested with
the Passport Authority in terms of section 10 of the
Passports Act, 1967 but it is not at all mandatory on the
passport authority to impound or cause to be impounded
or revoke a passport or travel document if proceedings in
respect of offence merely alleged to have been committed
by the holder of the passport or travel document are
pending before the Court in India.
Pendency of criminal case against the holder of passport
would not automatically result in impounding of his
passport and the mere fact that certain conditions
specified in Section 10 (3) of the Act, on the basis of which
a passport can be impounded, subsists in a given case
cannot by itself result in impounding of passport
automatically and once the Passport Authority, in his
wisdom, chooses to exercise his discretion in the said
direction as to whether on account of pendency of such
criminal case, the passport in question should be
impounded or not, then, at the said point of time, the
Passport Officer should apply his mind looking into the
nature of the criminal cases that have been
lodged/initiated against the petitioner and further that if a
passport is not impounded, then there are possibilities that
(2008) 3 SCC 674
the incumbent would not at all face the criminal cases.
Even if criminal case is pending against a person that by
itself does not require passport authority to
impound/revoke the passport in every given case. It is
only in appropriate cases for adequate and cogent reasons
such an order could be passed. While passing order of
impounding/revocation of passport, merely by quoting the
requirement mentioned in the section is clearly indicative
of circumstance that order has been passed without there
being any objective consideration of the subject matter."
12. The impugned order does not whisper a word as to
why the passport of the petitioner was considered
necessary to be impounded or what consequences would
have ensued if such a course of action is not undertaken. It
is evident that the decision to impound the Passport was
taken simply by observing that a criminal case is pending
and by referring to the statutory provision without citing as
to how it was considered necessary or what consequences
would have followed, if such order would not be passed. It
is trite law that when discretionary power is vested on a
quasi judicial authority, it is absolutely necessary that
proper reasons are to be cited by it, while determining or
adjudicating any matter. Tested in the backdrop of the
above requirement, the impugned order falls short by a long
margin and therefore, cannot be sustained.
13. As regards applicability or otherwise of the judgment
of this Court in Ashutosh Amrit (supra), no doubt, the said
case involved refusal of the authorities to renew a Passport,
on the ground of pendency of criminal case, by invoking the
provision under Section 6(2)(f) of the Act. But then, the basic
reason, i.e., pendency of the criminal case, is common to
both the cases. It would be absurd to hold that pendency of
criminal case, as referred to in Section-6, would have a
different consequence than Section-10. Evidently, only the
action to be taken would be different, as both the provisions
operate at different stages. However, the spirit behind the
two provisions remains the same, i.e., effect of pendency of
a criminal case on renewal of passport and on an existing
passport. That apart, there is no absolute bar in the Act for
issuing and renewing the passport on the ground of
pendency of criminal case. As already stated, the provision
under Section-10(3) is not mandatory, but discretionary. So,
if the provisions of the Act are read as a whole, it would
imply that mere pendency of criminal case cannot, in all
cases, lead to impounding of the Passport."
16. In the case of Nitin Kapoor (supra) the
following was observed.
"7. In the case at hand, the petitioner is a
businessman and has had previous travels to South
Africa since 1998 till recently in 2022 and the same is
supported by the visa documents submitted by him
before the learned court below. No doubt, the
prosecution against the petitioner relates to tax fraud
but is a native of Gurgaon, Haryana and runs
business. In the meantime, the letter of a client was
received by the petitioner which reveals some services
are to be offered to the said client. Mr. Kar, learned
Senior Advocate submits that the purpose of the
business as per the communication received by the
petitioner still survives and merely for the reason that
a prosecution has been lunched, he cannot be denied
to travel to South Africa and while advancing such an
argument, the principle based on a maxim omnis
indemnatus pro innoxio legibus habetur, which
means, everyone who has not been found guilty is
deemed innocent by the law is cited. In course of
hearing of this case, a Gazette Notification of
Government of India dated 20th June, 2007 is
produced to claim existence of an extradition treaty
between India and South Africa, hence, there is a
remote possibility of not getting the petitioner back for
the purpose of trial as apprehended by the learned
court below and as according to Mr. Kar, learned
Senior Advocate, any such apprehension, in the facts
and circumstances of the case, is totally misplaced
and misconceived. Having regard to the nature of the
offences alleged, the delay in commencement of trial
with the charge framed, attendance of the petitioner
all along duly represented by a counsel without
default with no any instance cited and the fact that
the petitioner has a past travel history and unlikely to
abscond having his roots in India, the Court reaches
at a conclusion that the learned court below was not
right in denying the permission for him to travel
abroad which could have been ensured imposing
suitable conditions."
17. Thus, non-issue of NOC on the ground cited
cannot be sustained in the eye of law.
18. From a conspectus of the facts, contentions
raised and the analysis made, this Court holds that the
decision of the authorities to refuse NOC to the petitioner
on the ground of pendency of disciplinary proceedings/
criminal cases against him indirectly amounts to
infringement of his fundamental right to liberty as per
Article 21 of the Constitution of India. The impugned order
therefore, deserves interference.
19. In the result, the writ petition is allowed. The
orders dated 12.07.2022 and 21.03.2025 are hereby
quashed. The concerned authorities are directed to issue
NOC in favour of the petitioner without any further delay
and in any case, not later than six weeks from today.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 11th November, 2025/`A.K. Rana, P.A.
Location: High Court of Orissa, Cuttack
