Mohideen Haniff vs Union of India (UOI) and The Appellate Authority, Chief Passport Officer

K. Raviraja Pandian, J.—The appellant in this appeal assails the order of the learned single Judge dated 23.04.2004 made in writ petition

No. 8246 of 2003 dismissing the writ petition filed by the appellant for issuance of writ of certiorarified mandamus to quash the order of the

second respondent dated 12.12.2002 as being arbitrary, illegal and contrary to law and consequently direct the return of the appellant''s passport

bearing No. Z-1522291.

The writ petition came to be filed in the following circumstances : The petitioner was a partner of M/s Ama Travels, a registered recruitment

agency in south India. In the course of the business, the appellant recruited and sent 512 trainees to Kuwait between 09.05.2001 to 25.07.2001.

According to the appellant they were sent on the request of the two companies belonging to a group of companies from Kuwait, namely, Al

Blasem General Trading & Cont. Co., and Gersen Ge. Trad. & Cont. Est. The understanding was that the Group of companies at Kuwait would

provide training and thereafter obtain necessary permit and visa before giving them employment. However, the appellant received a show cause

notice dated 24.01.2002 from the First Secretary (Cons), Embassy of India, Kuwait calling upon the appellant to show cause as to why his

passport should not be revoked and other legal proceedings be initiated against him, as the embassy, after careful examination of the complaints

received against the appellant, has come to the conclusion that the appellant was responsible for fraudulent/illegal supplying of 512 employees

sponsors in Kuwait; that the appellant has been holding the passports of about 252 employees; and that the workers brought by him to Kuwait

have genuine fear of harassment and victimisation by him, as he is opposed to their efforts to come back to India. The firm, in which the appellant

was a partner, sent a detailed reply to the show cause notice. The firm also took further steps to negotiate with the other companies at Kuwait and

also took serious efforts for repatriating the workers at its own cost. While that being so, when the appellant presented his passport for immigration

on 07.07.2002, for departure to Saudi Arabia, the Senior Immigration Officer collected the passport and informed the appellant that the same was

being forwarded to the Regional Passport Officer, Trichy on the ground that there was an order from him u/s 10 of the Passport Act, 1967.

It is the further case of the appellant that as no order has been served on the appellant, the appellant preferred an appeal u/s 11 of the Passport

Act before the Appellate Authority, the Chief Passport Officer, Patiala House, New Delhi explicitly stating that the order of impounding the

passport was not served on him and there was no legal necessity for impounding the appellant''s passport. The appellant approached this Court by

way of Writ Petition No. 41945 of 2002 challenging the very impounding of the passport. However, in view of the pendency of the appeal before

the appellate authority, this Court, by its order dated 25.11.2002 directed the Secretary, Ministry of External Affairs, New Delhi, the first

respondent therein to furnish a copy of the order in and by which the appellant''s passport came to be impounded within two weeks from the date

of production of a copy of the order by the appellant. In the said order, the Court gave liberty to the appellant to raise additional grounds in the

pending appeal before the Chief Passport Officer, the appellate authority. Even before the order was furnished, the appellate authority, by order

dated 12.12.2002 dismissed the appeal on the ground that the appellant has violated Section 17 of the Passport Act, 1967 by wrongfully confining

250 workers against their will and Section 10(3)(f) for withholding their passports and as such the action taken u/s 10(3)(c) of the Act was in

accordance with law. The correctness of the said order was canvassed in the writ petition No. 8246 of 2003.

The learned single Judge dismissed the writ petition by holding that u/s 10 of the Passport Act, the authorities have been vested with the power

for either varying, impounding or also revocation of passports or other travel documents. Section 10(3)(c) specifically enables the Passport Officer

to impound or cause to be impounded or revoke the passport if the authority deemed it necessary in the interest of the general public. u/s 10(3)(f)

of the Act if the passport holder contravenes the conditions of the passport, then the impounding or revocation, as the case may be, could be

resorted to. As per Section 17 of the Passport Act, the passport always remains the property of the Central Government and holding of the

passport by a passport holder would only mean that he is the custodian of the property of the Central Government. When it came to light that the

passport holder is indulged in violation of the provisions of the Section 10(3) of the Act it could not be held that the impounding the passport is

illegal. The correctness of the said order is put in issue in this writ appeal.

Counsel on either side started to argue on merits by putting forth the facts of the case. Learned Counsel for the appellant submitted the facts of

the case, as narrated above and ultimately contended that all 512 persons were repatriated at the cost of the appellant and they have also been

paid substantial amount to compensate the loss, however, maintained that the appellant has not committed any mistake and only the group

companies at Kuwait were at fault in engaging them as workers when there was no work permit, contrary to the understanding that the companies

would only give training and thereafter obtain a work permit. The learned Additional Solicitor General argued for sustaining the order passed by

the appellate authority, which came to be confirmed by the learned single Judge.

Heard the learned Counsel on either side and perused the materials available on record.

From the above contentions of the parties, it is the duty of the Court to decide whether the order of impounding of passport has been passed in

accordance with law. In that view of the matter, when the appellant was asked to point out the order passed u/s 10(3)(c) or 10(3)(f) of the Act,

learned Counsel for the appellant has pointed out that the order dated 06.02.2002 which is available at page No. 3 of the original typed set of

papers as the order of impounding. The said order read as under:

EMBASSY OF INDIA

PB 1450 KUWAIT Date 06.02.2002

KUW/CONS/408/1/2002

To

All Passport issuing Authorities in India

All Indian Mission/posts abroad

All check posts in India

The Director of Intelligence Bureau MHA, New Delhi

The Deputy Secretary (PV) MEA, New Delhi

All Protector of Emmigrants in India

The Chief Immigration Officer, Shastri Bhavan, Madras, Trivandrum.

The Superintendent of Police, SB CID, Madras.

The Chief Secretary, All State Government and Union Territories in India

Subject :Impounding of Passports - Reg

Sir,

It has been decided to impound passport mentioned in the annexure u/s 10(3)(f) of the Passport Act, 1967. Hence, if the said passport is

presented to you for any service it may be seized and forwarded to this office immediately. No passport facilities whatsoever should be granted to

the individual without prior reference to this office.

Yours faithfully,

Sd/-

(Francis Xavier XAXA)

Second Secretary

S. No. Name & F'' Name, Date & Place PPT No. & date &

File No. of Birth & Address place of issue &

remarks

Haniff Mohideen 02.04.1983 Z 152291

S/o Mohideen Adhiramapattinam 24.02.2000

KUW/Cons/1/2002 42 Pudumanai St., Trichirappalli

Adhiramapattinam

Thajavur Diustrict, Illegal supply

Tamilnadu of labour.

In the counter affidavit filed on behalf of the third respondent by Mr. A. Pandurangan, S/o (Late) P. Arumugam, Acting Passport Officer in the

Office of the Passport, Trichy, in the writ petition, it is stated in paragraph 3 that since the appellant has submitted no explanation to the show

cause notice (dated 24.01.2002) the competent authority, namely, the Embassy of India, Kuwait has passed an order impounding his passport u/s

10(3)(f) of the Act. Copy of the said order was communicated to the appellant/petitioner on 03.01.2003. In the counter affidavit sworn in by the

Passport Officer, Trichy, filed in the present appeal, in paragraph 5, it is stated that the appellant was issued with the show cause notice dated

24.01.2002 by the Embassy of India, Kuwait and handed over to him in person on 24.01.2002 by which the appellant was directed to give

explanation within 10 days. Since the appellant had not responded, his passport was impounded by the Embassy of India, Kuwait, vide

KUW/CONS/408/1/2002 dated 06.02.2002 presuming that the appellant has nothing to explain. The said letter has been perused by us. This is

nothing but a letter which has been extracted in paragraph-7 above in which the second secretary, Francis Xavier has informed that it has been

decided to impound the passport of the appellant u/s 10(3)(c) of the Passport Act and informed the addressee therein that if the said passport was

presented for any service, it might be seized and forwarded to the office. Hence, the learned Additional Solicitor General was requested to place

the file relating to the case before this Court and find out whether any order as required under the Act has been passed by the authorities. The

learned Solicitor General perused the file and fairly stated that the order dated 06.02.2002 referred to by the appellant as well as in the counter

affidavit is not the order of impounding passed by the appropriate authority, it is only an intimation to the addressee therein that the appropriate

authority has intended to impound the passport of the appellant. We also perused the file and we find no order passed u/s 10(5) of the Act is

available in the file.

In this juncture it is appropriate to refer to the relevant provisions:

Section 10. Variation, impounding and revocation of passports and travel documents--(1) The passport authority may, having regard to the

provisions of Sub-section (1) of Section 6 or any notification u/s 19, vary or cancel the endorsements on a passport or travel document or may,

with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a

passport or travel document has been issued and may, for that purpose, require the holder of a passport or travel document, by notice in writing,

to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice.

(2) ...

(3) The passport authority may impound or cause to be impounded or revoke a passport or travel document:

(a) if the passport authority is satisfied that the holder of the passport or travel document is in wrongful possession thereof;

(b) if the passport or travel document was obtained by the suppression of material information or on the basis of wrong information provided by

the holder of the passport or travel document or any other person on his behalf:

Provided that if the holder of such passport obtains another passport, the passport authority shall also impound or cause to be impounded or

revoke such other passport.]

(c) if the passport authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly

relations of India with any foreign country, or in the interests of the general public;

(d) if the holder of the passport or travel document has, at any time after the issue of the passport or travel document, been convicted by a court in

India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

(e) if proceedings in respect of an offence alleged to have been committed by the holder of the passport or travel document are pending before a

criminal court in India;

(f) if any of the conditions of the passport or travel document has been contravened;

(g) if the holder of the passport or travel document has failed to comply with a notice under Sub-section (l) requiring him to deliver up the same;

(h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of

the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from

India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant

or summons has been so issued or an order has been so made.

(4) The passport authority may also revoke a passport or travel document on the application of the holder thereof.

(5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel

document under Sub-section (l) or an order impounding or revoking a passport or travel document under Sub-section (3), it shall record in writing

a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same

unless in any case, the passport authority is of the opinion that it will not be in the interests of the sovereignty and integrity of India, the security of

India, friendly relations of India with any foreign country or in the interests of the general public to furnish such a copy.

(6) ...

(7) ...

(8) ...

(9) ...

Appeals--(1) Any person aggrieved by an order of the passport authority under Clause (b) or Clause (c) of Sub-section (2) of Section 5 or

Clause (b) of the proviso to Section 7 or Sub-section (1), or Sub-section (3) of Section 10 or by an order under Sub-section (6) of Section 10 of

the authority to whom the passport authority is subordinate, may prefer an appeal against that order to such authority (hereinafter referred to as the

appellate authority) and within such period as may be prescribed:

Provided that no appeal shall lie against any order made by the Central Government.

(2) No appeal shall be admitted if it is preferred after the expiry of the period prescribed therefor.

Provided that an appeal may be admitted after the expiry of the period prescribed therefore if the appellant satisfies the appellate authority that he

had sufficient cause for not preferring the appeal within that period.

(3) The period prescribed for an appeal shall be computed in accordance with the provisions of the Limitation Act, 1963 (36 of 1963), with

respect to the computation of the periods of limitation thereunder.

(4) Every appeal under this section shall be made by a petition in writing and shall be accompanied by a copy of the statement of the reasons for

the order appealed against where such copy has been furnished to the appellant and by such fee as may be prescribed for meeting the expenses

that may be incurred in calling for relevant records and for connected services.

(5) In disposing of an appeal, the appellate authority shall follow such procedure as may be prescribed;

Provided that no appeal shall be disposed of unless the appellant has been given a reasonable opportunity of representing his case.

(6) Every order of the appellate authority confirming, modifying or reversing the order appealed against shall be final.

The procedure prescribed is contained in Rule 16, which read as under:

Procedure to be followed by appellate authority:

On receipt of an appeal, the appellate authority may call for the records of the case from the authority which passed the order appealed against

and after giving the appellant a reasonable opportunity of representing his case, pass final orders.

As per Section 10(3)(c) of the Act power is vested with the Passport Authority to impound or cause to be impounded or revoke a passport or

travel document of a person if the passport authority deems it necessary to do so in the interest of the general public. Under Clause (f) to

subsection (3) of Section 10 of the Act the passport authority can impound or cause to be impounded or revoke a passport or travel document if

any of the conditions of the passport or travel documents has been contravened.

From the above provision, there is absolutely no doubt as to the power vested with the Passport Authority to impound the passport. But, Sub-

section 5 of Section 10 requires that the order impounding of the passport u/s 10(3) should be in writing with the brief statement of reasons for

making such an order and copy of the same shall be furnished to the holder of the passport unless in any case the passport authority is of the

opinion that it will not be in the interests of sovereignty and integrity of India, the security of India, friendly relations of India with any foreign

country or in the interests of the general public to furnish such a copy. But in this case, such an order invoking the power, as referred to, has not

been passed. The order dated 06.02.2002 referred to earlier, admittedly and conceedingly cannot be regarded as one passed u/s 10(5) of the

Act. The position has been accepted by the learned Additional Solicitor General.

As per Section 11, an appeal is maintainable against the order passed under subsection (3) or (6) of Section 10 of the Act. On fact, we have

concluded that no order u/s 10(3) has been passed. For that reason, neither the appeal filed nor the order passed on that appeal could be

regarded as an appeal or order passed as per the statutory provisions.

In the aforesaid circumstances of the case, we are of the view that the appellate order dated 12.12.2002 cannot be regarded as an order

purported to be passed u/s 11 of the Act and it cannot be legally sustained as there is no order of impounding in existence, which formed the basis

for filing the appeal and the order of the learned single Judge approving the same is also liable to be set aside and are accordingly set aside.

In the affidavit filed in support of the writ petition it was averred that a reply to the show cause notice was submitted. In the counter it is

averred that the appellant has not sent any reply to the show cause notice dated 24.01.2002 calling for the appellant as to why the appellant''s

passport should not be revoked and other legal proceedings be initiated. The reply dated 28.09.2001 referred to by the appellant is only a reply to

the show cause notice dated 21.09.2001 issued by the Protector of Emigrants, Chennai calling upon the appellant as Managing Partner of the firm

M/s. Ama Travels to explain as to why action should not be taken for contravening the provisions of the Emigration Act, 1983. From the factual

position, it is clear that the appellant has not filed any reply to the show cause notice dated 24.01.2002.

Having regard to the fact that the passport of the appellant has been seized as early as 07.07.2002 and the matter has been dragged on for

more than five years under litigation, we are of the considered view that interest of justice would subserve if the appellant is given an opportunity to

file his explanation to the show cause notice dated 24.01.2002 so as to enable the authority to proceed within the prescribed period. Thus, the

appellant is directed to file his reply to the show cause notice dated 24.01.2002 within a period of two weeks from the date of receipt of a copy of

this order and thereupon, the authority concerned is directed to pass an order as required u/s 10(5) of the Act within four weeks thereafter. While

passing the order, the authorities shall take note of the observations of the Supreme Court in the case of Mrs. Maneka Gandhi Vs. Union of India

(UOI) and Another, which read as follows:

We hope and trust that in future also whenever the passport of any person is impounded u/s 10(3)(c), the impounding would be for a specified

period of time which is not unreasonably long, even though no contravention of any fundamental right may be involved.

With these observations, the appeal is disposed of. No costs. The connected miscellaneous petitions are closed.