Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 499/2015
M/S JK TRAVELS ..... Petitioner
Through: Mr Sandeep Khurana & Ms Semab Ali
Fatima, Advs.
versus
UOI AND ANR ..... Respondents
Through: Mr Anurag Ahluwalia, CGSC with Mr
Sarfaraz Ahmad, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
O R D E R
% 19.01.2015
CM No. 858/2015 (Exemption)
1. Allowed subject to just exceptions.
WP(C) 499/2015
2. This writ petition is directed against the order dated 30.10.2014,
passed by the Secretary, Ministry of Overseas Indian Affair, Government of
India, New Delhi (hereinafter referred to as the Appellate Authority).
2.1 The petitioner concern is, presently, aggrieved by the fact that
pursuant to encashment of the bank guarantee furnished by it at the time of
seeking a Recruiting Agents License (RAL), the amount so received, at least
partially, has been adjusted pro tanto , with the potentiality of the balance
amount being adjusted in the near future.
W.P.(C) 499/2015 Page 1 of 4
2.2 The petitioner concern submits that in the absence of any loss or
damage, such directions could not be issued by the Appellate Authority.
2.3 To be noted, by virtue of the impugned order, the Appellate Authority
has issued two direfctions. First, that a sum of Rs. 3 lacs would be retained
as compensation towards expenses incurred by the Government of India in
processing emigration cases, which ultimately were found to be fraudulent.
Second, that the balance sum of Rs. 7 lacs would be returned to the
petitioner concern after October, 2015 (i.e., on 01.11.2015), only if, no
claims are filed by then, by any emigrant or any mission.
3. The impugned order was passed on an appeal preferred by the
petitioner concern against the order of the Protector General of Emigrants
(in short PGE). The order of the PGE is dated 03.01.2013. A perusal of the
order would show that the petitioner, who had obtained a RAL under the
Emigration Act, 1983, facilitated emigration of several persons by
submitting a false demand requisition dated 16.02.2011; which ostensibly
emanated from a foreign employer, by the name of, M/s Al-Magwa
Engineering & Construction Company. Enquiries revealed that the
concerned emigrants, were in fact sponsored by another entity, by the name
of M’/s Heavy Engineering Industries & Shipbuilding Co., KSC, Kuwait.
3.1 The PGE also records that the petitioner concern shifted its office
from 36-GF to 126-LGF, Barakhamba Lane, New Delhi, without prior
approval of the Registering Authority.
3.2 It is in these circumstances, it is averred, that a decision, was taken to
issue a show cause notice, (which was otherwise duly served on the
petitioner), to encash the bank guarantee and forfeit the amount.
W.P.(C) 499/2015 Page 2 of 4
4. It is the submission of the learned counsel for the petitioner that since
no financial loss has been incurred by the respondents, the amount collected
on encashment of the bank guarantee could not have been adjusted and/or
retained, in the manner indicated in the impugned order. For this purpose,
the learned counsel for the petitioner refers me to paragraph 9 of the PGE’s
order dated 03.01.2013 and the observations made in paragraph 7 of the
order of the Appellate Authority.
4.1 It is thus, the learned counsel’s submission, that in these
circumstances, the entire amount ought to have been returned to the
petitioner.
5. I have heard the learned counsel for the petitioner concern. Having
perused the impugned order, I tend to agree with the observations made
therein, in particular, in paragraph 7 to the effect that in moving and
processing papers, costs are incurred, which cannot be readily quantified. It
is for this purpose that the appellate authority has directed retention of Rs. 3
lacs. In so far as the direction issued qua the balance Rs. 7 lacs is
concerned, in my view, even that is appropriate. Since, the finding reached,
that the petitioner, had fraudulently facilitated emigration of certain persons
is not disputed, the likelihood of claims being lodged, cannot be ruled out at
this stage.
6. As regards the submission that the respondents have not incurred a
loss, and therefore the impugned order is flawed, according to me, is an area
which would require some bit of evidence, and if, the petitioner concern is
aggrieved by the direction, contained therein then, it would be open to it to
lay challenge to the said order by way of a suit. I am not inclined, on these
W.P.(C) 499/2015 Page 3 of 4
facts, to exercise my discretion under Article 226 of the Constitution.
7. I find no merit in the petition. The only liberty perhaps the petitioner
would have, is to file a suit, if it otherwise deems fit. The petition is,
accordingly, disposed of.
RAJIV SHAKDHER, J
JANUARY 19, 2015
kk
W.P.(C) 499/2015 Page 4 of 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 499/2015
M/S JK TRAVELS ..... Petitioner
Through: Mr Sandeep Khurana & Ms Semab Ali
Fatima, Advs.
versus
UOI AND ANR ..... Respondents
Through: Mr Anurag Ahluwalia, CGSC with Mr
Sarfaraz Ahmad, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
O R D E R
% 19.01.2015
CM No. 858/2015 (Exemption)
1. Allowed subject to just exceptions.
WP(C) 499/2015
2. This writ petition is directed against the order dated 30.10.2014,
passed by the Secretary, Ministry of Overseas Indian Affair, Government of
India, New Delhi (hereinafter referred to as the Appellate Authority).
2.1 The petitioner concern is, presently, aggrieved by the fact that
pursuant to encashment of the bank guarantee furnished by it at the time of
seeking a Recruiting Agents License (RAL), the amount so received, at least
partially, has been adjusted pro tanto , with the potentiality of the balance
amount being adjusted in the near future.
W.P.(C) 499/2015 Page 1 of 4
2.2 The petitioner concern submits that in the absence of any loss or
damage, such directions could not be issued by the Appellate Authority.
2.3 To be noted, by virtue of the impugned order, the Appellate Authority
has issued two direfctions. First, that a sum of Rs. 3 lacs would be retained
as compensation towards expenses incurred by the Government of India in
processing emigration cases, which ultimately were found to be fraudulent.
Second, that the balance sum of Rs. 7 lacs would be returned to the
petitioner concern after October, 2015 (i.e., on 01.11.2015), only if, no
claims are filed by then, by any emigrant or any mission.
3. The impugned order was passed on an appeal preferred by the
petitioner concern against the order of the Protector General of Emigrants
(in short PGE). The order of the PGE is dated 03.01.2013. A perusal of the
order would show that the petitioner, who had obtained a RAL under the
Emigration Act, 1983, facilitated emigration of several persons by
submitting a false demand requisition dated 16.02.2011; which ostensibly
emanated from a foreign employer, by the name of, M/s Al-Magwa
Engineering & Construction Company. Enquiries revealed that the
concerned emigrants, were in fact sponsored by another entity, by the name
of M’/s Heavy Engineering Industries & Shipbuilding Co., KSC, Kuwait.
3.1 The PGE also records that the petitioner concern shifted its office
from 36-GF to 126-LGF, Barakhamba Lane, New Delhi, without prior
approval of the Registering Authority.
3.2 It is in these circumstances, it is averred, that a decision, was taken to
issue a show cause notice, (which was otherwise duly served on the
petitioner), to encash the bank guarantee and forfeit the amount.
W.P.(C) 499/2015 Page 2 of 4
4. It is the submission of the learned counsel for the petitioner that since
no financial loss has been incurred by the respondents, the amount collected
on encashment of the bank guarantee could not have been adjusted and/or
retained, in the manner indicated in the impugned order. For this purpose,
the learned counsel for the petitioner refers me to paragraph 9 of the PGE’s
order dated 03.01.2013 and the observations made in paragraph 7 of the
order of the Appellate Authority.
4.1 It is thus, the learned counsel’s submission, that in these
circumstances, the entire amount ought to have been returned to the
petitioner.
5. I have heard the learned counsel for the petitioner concern. Having
perused the impugned order, I tend to agree with the observations made
therein, in particular, in paragraph 7 to the effect that in moving and
processing papers, costs are incurred, which cannot be readily quantified. It
is for this purpose that the appellate authority has directed retention of Rs. 3
lacs. In so far as the direction issued qua the balance Rs. 7 lacs is
concerned, in my view, even that is appropriate. Since, the finding reached,
that the petitioner, had fraudulently facilitated emigration of certain persons
is not disputed, the likelihood of claims being lodged, cannot be ruled out at
this stage.
6. As regards the submission that the respondents have not incurred a
loss, and therefore the impugned order is flawed, according to me, is an area
which would require some bit of evidence, and if, the petitioner concern is
aggrieved by the direction, contained therein then, it would be open to it to
lay challenge to the said order by way of a suit. I am not inclined, on these
W.P.(C) 499/2015 Page 3 of 4
facts, to exercise my discretion under Article 226 of the Constitution.
7. I find no merit in the petition. The only liberty perhaps the petitioner
would have, is to file a suit, if it otherwise deems fit. The petition is,
accordingly, disposed of.
RAJIV SHAKDHER, J
JANUARY 19, 2015
kk
W.P.(C) 499/2015 Page 4 of 4