Full Text
HIGH COURT OF DELHI
M/S TABISH AIRWAYS ..... Petitioner
Through: Mr.Mahabir Singh, Sr. Adv.
Ms.Kumkum Mandhanya, Advs.
Through: Mr.Anil Soni, CGSC for UOI.
JUDGMENT
1. This petition has been filed by the petitioner challenging the Order dated 08.03.2013 (hereinafter referred to as the ‘Impugned Order’) passed by the Secretary, Ministry of Overseas Indian Affairs, Government of India, New Delhi (hereinafter referred to as the ‘Appellate Authority’), on an appeal filed by the petitioner herein under Section 23 of the Emigration Act, 1983 (hereinafter referred to as the ‘Act’), which in turn challenged the Order dated 24.07.2012 passed by the Protector General of Emigrants (hereinafter referred to as ‘PGOE’) cancelling the Registration Certificate of the petitioner.
FACTUAL MATRIX
2. It is the case of the petitioner that the petitioner was granted a Registration Certificate on 07.06.2005, permitting the petitioner to work as a ‘Recruiting Agent’ to recruit workers for overseas employment during the validity of the certificate, which was upto 06.03.2020.
3. By a Notice dated 16th /19th December, 2011, the PGOE suspended the Registration Certificate of the petitioner and called upon the petitioner to show cause as to why the said suspension of the Registration Certificate granted in favour of the petitioner, be not extended. The said Show Cause Notice was based on three distinct allegations against the petitioner, which are as under: i. the complaint received from one Mrs.Dommati Kalavathi stating that her husband Shri Dommati Rajesh was deployed by the petitioner to work in Riyadh, Saudi Arabia as a Driver, however, once he reached there, his sponsor insisted upon him to work as a Shepherd in the farm instead of the contracted job and he was later brutally murdered by his sponsor on 30.10.2011. It was alleged that the petitioner had charged a huge amount for his deployment. ii. that the petitioner had obtained emigration clearance for five emigrants whose visas were for the labourer category and their profession was shown other than the labourer category by the petitioner in his affidavit. iii. that the petitioner had submitted documents for obtaining emigration clearance on behalf of the seven companies named in the Show Cause Notice, which were not even registered in Oman and their telephone numbers, fax numbers and e-mail IDs were all bogus and fake.
4. The petitioner replied to the Show Cause Notice inter alia contending that, as far as the seven companies which were alleged to be fake, the documents had been received by the petitioner directly from the foreign companies and the petitioner did not have any mechanism to check the phone numbers, E-mail IDs, fax, etc., of these alleged companies. It was further stated that there were no complaints received from any worker deployed with these companies.
5. The PGOE, vide Order dated 24.07.2012, while observing that the petitioner herein is not a fit person to hold the Registration Certificate, cancelled the Registration Certificate of the petitioner and directed the petitioner to surrender the same.
6. The petitioner, aggrieved of the above order, filed an appeal before the Appellate Authority under Section 23 of the Act. The said appeal, however, has been dismissed by the Appellate Authority vide the Impugned Order dated 08.03.2013.
7. The Appellate Authority, while dismissing the appeal, found in favour of the petitioner as far as the first ground was concerned, by observing that it would be difficult to attach any blame directly to the petitioner for the murder of Shri Dommati Rajesh, as there were no allegations made during his lifetime and, in fact, held that the PGOE could have checked through the Indian Mission whether a case of murder had been registered or not in Saudi Arabia, or the petitioner could have showed that the same incident is a natural death by way of documents.
8. As far as the second and the third grounds are concerned, the Appellate Authority held that the petitioner had got emigration clearance for five persons on a false declaration and was guilty of knowingly recruiting manpower for the companies which were not even registered in their home country and are, therefore, fraudulent companies. It held that the petitioner showed a gross disregard for the welfare of the emigrants.
SUBMISSIONS OF THE PETITIONER:
9. The petitioner challenges the finding of the Appellate Authority on the second ground, by contending that as far as the emigration clearance for the five persons is concerned, the petitioner had, in fact, withdrawn the application for these workers; these workers had subsequently applied for clearance in their individual capacity; and the petitioner had no role in it, hence the liability for the same cannot be attributed to the petitioner.
10. The learned senior counsel for the petitioner, in support of the above challenge, has drawn reference to the reply dated 07.05.2013 received by the petitioner under the Right to Information Act, 2005, which inter alia states that the five applicants with respect to whom the allegation had been made, had obtained emigration clearance as individual applicants.
11. As far as the third ground of the seven companies being not in existence is concerned, the learned senior counsel for the petitioner submits that the respondent has been unable to show any complaint filed by any worker who had been deployed by the petitioner in these companies or by any of their relatives regarding the petitioner company cheating them. He submits that it is the duty of the respondents to verify the genuineness of these companies and such burden cannot be saddled on the petitioner, as the petitioner is only concerned with the genuineness of the visa. He submits that no action has been taken by the respondents against its officers who had granted the emigration clearance for these companies on an application filed by the petitioner. He submits that, therefore, the action of the respondent is mala fide and cannot be sustained.
12. The learned senior counsel for the petitioner further submits that now with the passage of time, and as this petition has been pending for almost ten years, the petitioner should not be burdened with further consequences of the Impugned Order and the same, therefore, is liable to be set aside.
SUBMISSIONS OF THE RESPONDENT:
13. On the other hand, the learned counsel for the respondents submits that it is the duty of the petitioner, as a Recruiting Agent, to satisfy itself of the existence and the genuineness of the alleged overseas employer(s)/company(ies). He submits that, in the present case, the seven companies for which the petitioner was recruiting manpower from India were, in fact, found to be fake and bogus.
14. The learned counsel for the respondent further submits that the petitioner first tried to pass the blame on the alleged agents overseas, from whom it had allegedly received the documents with respect to the said companies. He submits that, in fact, this admission, itself, would constitute a violation of Rule 10(1)(viii) of the Emigration Rules, 1983 (hereinafter referred to as the ‘Rules’). He submits that this violation by the respondent, in fact, amounts to an offence as defined in Section 24(1)(c) of the Act. He submits that, therefore, the Impugned Order deserves no interference from this Court.
ANALYSIS & FINDINGS:
15. I have considered the submissions made by the learned counsels for the parties.
16. With the outflow of skilled and unskilled workers from India for employment purposes, it was realised that the workers were illtreated and were made to do work more than an ordinary person is supposed to do. They were exploited by the recruiting agents as well as by the employers abroad. This led to the promulgation of the Emigration Act, 1922, which was aimed to mitigate the problems and to regulate the emigration of skilled and unskilled workers.
17. With the tremendous jump in the outflow of skilled and unskilled workers from India and increasing concerns of both, the Government and the public in general, the Emigration Act, 1983, was promulgated. The Statement of Objects and Reasons of the Act states that it is aimed to regulate the terms and conditions of overseas employment and seeks to protect and safeguard the rights and interests of the Indian Workers going overseas for employment on a contractual basis.
18. Under the provisions of the Act, a foreign employer can recruit any citizen of India for employment in any country, either through a „registered recruiting agent‟ or directly, after obtaining a valid Permit from the competent authority. Section 2(1)(l) defines the term ‘recruiting agent’ as under:-
19. Rule 5 of the Emigration Rules, 1983 (hereinafter referred to as the ‘Rules’) also shows that the ‘recruiting agent’ acts as a representative and attorney of the foreign employer. Rule 5 is reproduced hereinunder:-
20. Section 16 of the Act provides that no employer shall recruit any citizen of India for employment in any country or place outside India except through a recruiting agent or in accordance with a valid permit issued in that behalf. Therefore, the recruiting process under the Act can be initiated only by the recruiting agent on behalf of the employer or by the employer himself. This again emphasizes the role that a recruiting agent plays in the employment of workers from India to a country abroad.
21. Section 22(1) of the Act prohibits a citizen of India to emigrate unless he obtains, from the PGOE, an authorization for emigration. Such application may be made through the recruiting agent, through whom the emigrant has been recruited, or through the employer concerned.
22. The above provisions show that a ‘recruiting agent’ represents an employer with respect to any matter in relation to the recruitment/employment of the Indian Worker in the foreign country, including dealings with persons so recruited or desiring to be so recruited. As a representative of the employer, therefore, the recruiting agent cannot claim immunity or plead ignorance once it is found that such an employer was, in fact, a non-existing entity.
23. Section 10 of the Act states that no person shall function as a recruiting agent without a valid certificate issued in that behalf by the registering authority. Section 10 of the Act is reproduced hereinbelow:-
24. Section 11 of the Act provides for the basic eligibility criteria for making an application for registration as a recruiting agent. It emphasizes on the applicant’s financial soundness, trustworthiness, and antecedents. Sub-Section (1) of Section 11 is reproduced hereinbelow:-
25. The ‘terms and conditions’ of the registration are provided in Rule 10 of the Rules, which requires the holder of the Registration Certificate to inter alia maintain records in form of individual folder for each employer containing details of inter alia original demand letters from the employer, the power of attorney issued in favour of the recruiting agent, and the correspondence exchanged between them. The purpose again is to ensure that the employer is genuine and the recruiting agent is acting on behalf of such an employer after having satisfied himself of the safety and well-being of the employees such recruiting agent is hiring for such employer. Rule 10 of the Rules, so far as is relevant, is reproduced herein below:-
26. Section 14 of the Act empowers the Registering Authority to suspend or cancel the registration granted in favour of the recruiting agent inter alia on the ground that the holder of the certificate is not a fit person to continue to hold the certificate. Section 14 of the Act is reproduced hereinunder:-
27. Section 24 of the Act defines the offences and penalties under the Act. Sub-Section (1) of Section 24 is reproduced hereinunder:-
28. The above provisions of the Act highlights the role and the responsibilities of a recruiting agent. His function is not only to act as a representative of the employer but also as a guardian for the emigrants/workers. The recruiting agent cannot, therefore, be permitted to contend that he does not have any duty to check the antecedents of the employer and that such duty shall lie only with the PGOE. No doubt PGOE must also, in order to achieve the object of the Act, that is, to safeguard the rights and interests of the citizens of India wanting to emigrate to a foreign land for employment purposes, perform its duty of scrutinizing the application made by any such recruiting agents, at the same time, the recruiting agent cannot wash its hands off by placing all the burden of the same only on the PGOE. Any false declaration made by the recruiting agent would, in terms of Section 14 of the Act, authorizes the registering authority to suspend and cancel the registration certificate granted to such recruiting agent.
29. In the present case, the respondents allege that seven of the companies for which the petitioner acted as a recruiting agent were found to be non-existent, inasmuch as they were not registered in Oman and the telephone number, E-mail IDs, fax, etc., given of these companies were found to be non-existent. The petitioner does not dispute this assertion, but merely seeks to pass the onus of checking the authenticity of these Companies/employers on the Indian Embassy at Oman. As observed herein above, such defence is not available to the petitioner. The petitioner was acting as an agent of non-existing entities. The petitioner cannot feign ignorance of such vital fact, nor can it put the entire blame on the doorstep of the PGOE; it must face the consequences of its acts, which in fact, border on fraud. Its defence that it had acted on the documents supplied by a third party, also cannot be accepted as, under the Act and the Rules, the prime responsibility for verifying the antecedents of the employer is on the petitioner alone.
30. The third ground taken for cancelling the Registration of the petitioner itself was sufficient to justify the impugned action.
31. Even for the second ground, though the petitioner may have withdrawn the applications filed for the concerned applicants, the same again shows a grave lapse on the part of the applicant. I however, need not enter into much detail on this ground, as it would not only involve scrutiny of disputed question of fact and appreciation of evidence, but also because I find that the third ground alleged against the petitioner to cancel its registration, was fully established against the petitioner.
32. In any event, this Court in the exercise of its power under Article 226 of the Constitution of India does not act as an Appellate Court against the order passed by the Appellate Authority; it is only to examine the decision making process and to test if the decision taken is arbitrary, whimsical or unreasonable. Tested on these parameters, I find that the petitioner has been unable to make out a case for interference with the Impugned Order. CONCLUSION:
33. In view of the above, I find no merit in the present petition. The same is, accordingly, dismissed. The pending application also stands disposed of. The petitioner shall pay costs of Rs.25,000/- to the respondents within a period of four weeks from today.