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Minoo Maneckshaw Kalifa Vs. the Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberO.C.J Miscellaneous Application No. 72 of 1972
Judge
Reported in(1974)76BOMLR788a
AppellantMinoo Maneckshaw Kalifa
RespondentThe Union of India (Uoi)
DispositionAppeal allowed
Excerpt:
passports act (xv of 1967), sections 10 (3)(c), 10 (5), 11, 2-constitution of india, articles 14, 21 -- impounding of passport of citizen 'in the interests of general public' without giving hearing -- -whether such impounding void being in breach of principles of natural justice -- whether rule of prior notice and hearing excluded by necessary implication -- audi alteram partem, application of rule of -- 'if the passport authority deems it necessary so to do' in section 10(3)(c), interpretation of -- judicial review, whether excluded -- 'nexus between material before authority and order passed -- 'passport rules, x 967, rules 14, 2.;there is nothing in the language used in section 10(3)(c) of the passports act, 1967, which excludes the operation of the rule audi alteram partem either.....tulzapukkar, j.1. by this writ petition filed under article 226 of the constitution the petitioner one minoo maneckshaw kalifa, an employee of the central bank, is challenging the legality and/or validity of the decision of respondent no. 1 (union of india) to impound his passport under section 10(5)(c) of the passports act, 1967, which was communicated to him by respondent no. 2 (regional passport officer, bombay) by his letter dated november 25, 1971.2. the facts giving rise to the petition may be stated. petitioner minoo maneckshaw kalifa, who belongs to a middle class family, joined the service of the central bank of india ltd. on july 16, 1951 as a clerk in the bank's head office at bombay and later on worked in various capacities such as junior officer, accountant and agent of local.....
Judgment:

Tulzapukkar, J.

1. By this writ petition filed under Article 226 of the Constitution the petitioner one Minoo Maneckshaw Kalifa, an employee of the Central Bank, is challenging the legality and/or validity of the decision of respondent No. 1 (Union of India) to impound his passport under Section 10(5)(c) of the Passports Act, 1967, which was communicated to him by respondent No. 2 (Regional Passport Officer, Bombay) by his letter dated November 25, 1971.

2. The facts giving rise to the petition may be stated. Petitioner Minoo Maneckshaw Kalifa, who belongs to a middle class family, joined the service of the Central Bank of India Ltd. on July 16, 1951 as a clerk in the Bank's Head Office at Bombay and later on worked in various capacities such as Junior Officer, Accountant and Agent of local branches. In or about July 1969 since he was likely to be transferred to the London Office of the Central Bank, which had by then become a statutory Corporation pursuant to the nationalisation of the former Central Bank of India Ltd., he applied for a passport and he was issued a passport bearing No. 1-797339 dated July 28, 1969 valid upto July 27, 1972. On October 18, 1969 by an Office Order he was appointed as an Accountant in the London Branch of respondent No. 3 (Central Bank of India) ; he joined the London Office in that capacity on October 24, 1969 and worked as such Accountant upto March 31, 1970. On April 1, 1970 he was promoted as Acting Manager of London Office on resignation of one Sami J. Patel, who was till then the Manager of the London Office, and he was confirmed as the Manager of the London Office on May 1, 1970. When he first went to London in October 1969 he had taken his wife and two minor children with him, who are still residing there. By a letter dated December 30, 1970 addressed by one Mr. P. Krishna Iyer, Officer on Special Duty in the Head Office at Bombay of respondent No. 3, the petitioner was called upon to give explanation in respect of certain alleged irregularities and certain unauthorised actions in respect of certain accounts maintained in the London Office; the petitioner gave his explanation about these matters by his letter dated January 18, 1971. However, thereafter by another Office Order dated March 5, 1971 one Shri J.B. Kamath was appointed as the Manager of London Branch in place of the petitioner and on April 8, 1971 the petitioner was relieved from his post at the London Office and was asked to report to Bombay Office as early as possible. In the meanwhile as he had not enjoyed any privilege leave since his transfer to London Office in October 1969, he applied for four to six weeks' privilege leave and on April 16, 1971 he was informed that the Head Office had granted four weeks' leave to him and that he should report at Bombay on or before May 15, 1971, which leave was further extended by a fortnight by the Head Office. According to the petitioner, he had worked hard and with sincerity and devotion and therefore had risen from the rank of a mere clerk to the rank of Branch Manager but from the circumstances in which his transfer from London to Bombay Office had been effected and the reasons for which it was effected, he felt that he did not enjoy full confidence of his employers and that in the interest of both he should leave the employment and therefore by his letter dated May 15, 1971 addressed to the Manager of London Office he tendered his resignation. Pending consideration of his letter of resignation the petitioner with a view to show his bona fides left London on May 29, 1971 and arrived in Bombay on the following day, leaving behind his family in London and after his arrival he reported for duty on May 31, 1971. It appears that since May 1971 -- Mr. Ashok Desai stated since middle of May 1971 -- respondent No. 3 was contemplating holding a departmental enquiry against the petitioner in respect of the matters about which petitioner's explanation had been sought. On June 17, 1971 the petitioner was served with a charge-sheet which contained three charges against him; the first charge related to the Account of M/s. Ahmed Bros., the second pertained to the Account of M/s. Montex Ltd. and the third to the Account of M/s. G.R. Irani & Co. The allegations in the charges were that in connection with the aforesaid three accounts he had committed irregularities and acted unauthorisedly and in disregard of the Head Office instructions. By his letter dated June 24, 1971 he submitted his reply. Thereafter a full-fledged departmental enquiry was held by one S.R. Tipnis, Regional Manager, Maharashtra into these charges levelled against the petitioner and after completing the enquiry on July 21, 1971, the Enquiry Officer submitted his report on August 9, 1971. It may be stated that the petitioner's explanation regarding the second and third charges was accepted and he was completely exonerated in that behalf but so far as the first charge was concerned, the Enquiry Officer took the view that the decisions in connection with the operation of the account of M/s. Ahmed Bros, had been taken by the petitioner in joint consultation, deliberation and concurrence of his three colleagues as per instructions contained in the Order of Appointment of the petitioner as the Manager of London Branch and as such the petitioner alone could not be held responsible for taking such decisions and for the consequences thereof but that as an executive head of the branch he was responsible for not making adequate arrangements to maintain close follow-up of the advances through controlled checks. However, the Enquiry Officer unhesitatingly came to the conclusion that the actions taken by the petitioner in respect of the account of M/s. Ahmed Bros, were taken bona fide and in good faith and in the honest belief that under the circumstances in which, he was placed they were in the best interest of the Bank. Having regard to the petitioner's family connection with the Bank (the petitioner's father was also an' employee of the Bank) and having regard to his past record of service, the Enquiry Officer recommended that it would be proper and fair to take a sympathetic view of the lapses on the part of the petitioner and he proposed that the petitioner should be censured and a note should be taken to that effect in his Service Record. On this report no action one way or the other has so far been taken by the Custodian of respondent No. 3.

3. During the course of departmental enquiry i.e. between June and August 1971 at one of the hearing the petitioner was informed by one D.V. Taneja, Personnel Manager of respondent No. 3, that the petitioner's passport had been impounded since the departmental enquiry was pending; but since no official communication was received by him, the petitioner did not take any serious notice about it. However, after the departmental enquiry was con-eluded, the petitioner, in view of the report submitted by the 'Enquiry Officer, reasonably expected that his resignation would be accepted and necessary action for releasing his passport to him would be taken. But when he found that no action was being taken in that behalf for quite some time, the petitioner by his letter dated October 6, 1971 addressed to the Custodian of respondent No. 3, requested the latter to expedite acceptance of his resignation and further requested that the Bank should write to the Government department concerned requesting for cancellation of the order impounding his passport, so that he could return back to London at the earliest to join his wife and children. He also mentioned in the said letter that he had received offers of employment from leading reputable concerns at London which he was most anxious to avail of and as such his letter of resignation be accepted without delay. On November 19, 1971 the petitioner received a reply from D.V. Taneja on behalf of respondent No. 3 informing him that his resignation was still under consideration and in the meantime he had been posted as Joint Superintendent in Personnel Department at Bombay and that he should join his duty immediately. Pursuant to this letter the petitioner started working as Joint Superintendent in the Personnel Department from November 22, 1971. 'While he was so working he received a letter dated November 25, 1971 from respondent No. 2 informing him that it had been decided to impound his passport under Section 10(3)(c) of the Passports Act, 1967 and that he should surrender his passport to the office within a week from the date of receipt of the letter by him. The petitioner was further informed by that letter that as the decision to impound his passport had been taken by the Central Government no appeal would lie against it. By his attorney's letter dated December 16, 1971 addressed to respondent No. 2, copy of which was also forwarded to the Secretary, Ministry of External Affairs, Government of India, New Delhi, the petitioner after setting out the relevant facts challenged the aforesaid decision of the Central Government on various grounds and demanded withdrawal or cancellation of the said decision and in default threatened legal action and since the demand for justice was not conceded, he approached this Court on February 4, 1972 with the present petition whereby the decision of the Central Government to impound his passport has been challenged on several grounds.

4. At the outset it may be stated that Mr. Sorabjee for the petitioner made a grievance o one or two aspects pertaining to the impugned decision. In the first place, he contended that all that had been done by respondent No. 2 by the letter dated November 25, 1971 was that the Central Government's decision to impound the petitioner's passport, which must have been arrived at earlier in point of time, had been merely communicated to his client but no copy of the actual decision or order passed by the Central Government had been served upon the petitioner and his client was entitled to get such a copy or at any rate the decision or order of the Central Government should be produced before the Court; secondly he contended that under Section 10(3)(c) of the Passports Act, the passport authority could impound a passport on four grounds viz. if the passport authority deemed it necessary so to do (a) in the interests of sovereignty and integrity of India; (b) in the interests of the security of India; (c) in the interests of friendly relations of India with any foreign country or (d) in the interests of the general public, but the letter dated November 25, 1971 by which the impugned decision was communicated to the petitioner did not specify which one of the several grounds mentioned above was considered applicable by the Central Government to the petitioner's case and as such the impugned decision could be said to disclose patent non-application of mind and was therefore arbitrary. Mr. Joshi appearing for respondents Nos. 1 and 2 on the other hand urged that there was no necessity to produce the original decision or order passed by the Central Government inasmuch as, whatever decision had been arrived at by the Central Government was duly communicated to the petitioner by respondent No. 2 by his letter dated November 25, 1971. He pointed out that in the affidavit in reply filed by Shri Eazi, respondent No. 2, the position has been clarified that the petitioner's passport had been impounded under Section 10(3)(c) of the Act by the Central Government as it deemed necessary to do so 'in the interests of general public' and as such there was no question of there being any vagueness about the ground on which the decision to impound the passport of the petitioner was taken or there being any non-application of mind on the part of the Central Government. It was, however, pointed out by me to Mr. Joshi that the original decision or order of the Central Government will have to be produced in the case in order to ascertain whether this particular ground, now set out in the affidavit in reply, was present to the mind of the Central Government when it took the impugned decision and the affidavit in reply did not throw any light on that aspect of the matter. After scrutinising the relevant files Mr. Joshi made a statement from the Bar that the decision to impound the passport of the petitioner had been taken by the Central Government on June 11, 1971 though the same was communicated to the petitioner by letter dated November 25, 1971. In view of this fact stated by Mr. Joshi the question assumed importance as to whether the specific ground as mentioned in the affidavit was present to the mind of the Central Government on June 11, 1971 and when this aspect was specifically Put to him, Mr. Joshi, though with some reluctance, agreed to produce the original decision, and the relevant noting containing the decision from the concerned file was then extracted and produced and tendered at exh. B. From the relevant noting produced at exh. B it became clear that the Central Government had taken its decision on June 11, 1971 to impound the passport of the petitioner under Section 10(3)(c) of the Act 'in the interests of the general public.' In view of this material thus produced before the Court, Mr. Sorabjee did not press either of his contentions mentioned above, particularly the contention that/the impugned decision disclosed non-application of mind on the part of Central Government.

5. I may also mention that initially the impugned decision was challenged by Mr. Sorabjee on the ground that the same was ultra vires the Act because it had not been established by respondents Nos. 1 and 2 that any of the grounds mentioned in Section 10(3)(c), particularly the ground of general public interest, in fact existed and in that behalf the petitioner relied upon the categorical averment made in para. 12 of the petition, namely, 'The petitioner says that in fact there are no reasons by which the respondents can justify the impugned action under Section 10(3)(c) ' and it was pointed out that beyond barely denying the averment no attempt was made by the respondents in their affidavit in reply to indicate the material or the basis on which the respondents could justify the impugned decision. In this state of pleadings Mr. Sorabjee urged that no clue whatsoever having been furnished it was not possible for the Court to say whether the Central Government had before it any relevant or germane material having rational nexus to the ground on which the impugned decision was taken and as such the same was liable to be quashed, for, according to him, in view of the Supreme Court's decisions in Barium Chemicals Ltd. v. Co. Law Board : [1967]1SCR898 and Bohtas Industries Ltd, v. S.D. Agarwal : [1969]3SCR108 a limited judicial scrutiny of the impugned decision on the point of rational and reasonable nexus was open to a Court of law and it would not be sufficient on the part of the Central Government merely to assert that the impounding of the petitioner's passport was necessary in the interest of general public without giving any clue as to what was the material on the basis of which it came to that conclusion. When this aspect was pressed by Mr. Sorabjee, Mr. Joshi desired, without prejudice to his contention that the entire matter covered by Section 10(5)(c) was within the subjective satisfaction of the Central Government, to file a supplementary affidavit indicating material on the basis of which the impugned decision had been taken and accordingly a supplemental affidavit of Shri Kazi dated March 4, 1972 has been filed in the case. Since such material was disclosed for the first time by way of supplemental affidavit dated March 4, 1972, the petitioner has filed an affidavit in rejoinder dated March 10, 1972 setting forth his contentions in regard to such material so disclosed.

6. In view of what has been stated above, Mr. Sorabjee confined his challenge to the impugned decision to four grounds: (a) that the impugned decision or order was arrived at or passed in breach of the principles of natural justice and fair play, inasmuch as, no hearing or opportunity to have his say was given to the petitioner and since the impugned decision or order is fraught with civil consequences, the non-observance of the principles of natural justice and fair play must lead to quashing of the same; (b) that there was no material before the Central Government justifying the impounding of the petitioner's passport in the interests of the general public and the materials disclosed in the supplemental affidavit of Shri Kazi on the basis of which the impugned decision was taken has no rational nexus with the ground on which the passport has been impounded; in other words, according to him, the materials disclosed are such that no reasonable body of persons could come to the conclusion that it was necessary or expedient to impound the petitioner's passport in the interests of general public and therefore the impugned decision was liable to be quashed; (c) that the impugned decision was the result of mala fide action taken at the instance of and in concert with the Central Bank to serve the extraneous purpose of forcing the petitioner to continue to serve that bank; and (d) alternatively, if the Court on construction came to the conclusion that no hearing or opportunity was required to be given to the petitioner before taking an adverse decision, then the provisions of Section 10(3)(c) of the Act were violative of Article 14 of the Constitution. According to Mr. Sorabjee, if the Court came to the conclusion that principles of natural justice were not attracted and that the entire matter covered by Section 10(5)(c) was within the subjective satisfaction of the Central Government and its decision was not open to even limited scrutiny at the hands of the Court, then the said provision will be hit by Article 14 of the Constitution; further having regard to the definition of 'Passport Authority' given in Section 2, an order impounding a passport under Section 10(5)(c) could be made either by a Passport Officer or the Central Government and having regard to Section 11 of the Act no appeal has been provided if the order is made by the Central Government but an appeal has been provided if the order happens to be passed by the Passport Officer and under Section 11(5) proviso opportunity to represent his case has to be given to the holder of the passport before his appeal is finally decided; in other words, in one case there is no appeal and in the other case there is an appeal with full opportunity of being heard, though the order impounding the passport may be passed on the same ground and for same reasons and on same materials and no guidance has been given in the Act as to in which case the Passport Officer will decide and in which case the Central Government will decide and as such as between passport-holders similarly situated discrimination was implicit and, therefore, the relevant provision was clearly violative of Article 14. He, however, made it clear that he was not interested in pressing the point of vires of Section 10(5)(e) of the Act if the Court was inclined to hold that principles of natural justice had to be followed before ordering the impounding of the passport and that the decision of the authority was subject to a judicial scrutiny in the manner indicated above.

7. On the other hand, Mr. Joshi appearing for respondents Nos. 1 and 2 contended that the decision required to be taken by the Passport Authority under Section 10(3) of the Act was an administrative decision guided by consideration of policy and as such the principles of natural justice or fair play were not. attracted and therefore it was not incumbent on the part of the Central Government to give any hearing to the petitioner before taking the impugned decision and as such the same could not be challenged on that ground. Mr. Joshi further contended that the entire matter covered by Section 10(5)(c) of the Passports Act, 1967 was within subjective satisfaction of the passport authority and as such no judicial scrutiny of such subjective decision was possible and the Court could not go into the question as to whether there was material before the Central Government on the basis of which it came to the conclusion that it was necessary to impound the petitioner's passport in the interests of the general public. Alternatively he contended that assuming that a judicial scrutiny to a limited extent as was contended for by Mr. Sorabjee was possible, the material on the basis of which the impugned decision was taken by the Central Government and which has been disclosed in the supplemental affidavit dated March 4, 1972 was relevant and germane to the issue which the Central Government had to consider and therefore the conclusion that it was necessary in the interests of general public to impound the petitioner's passport could not be challenged. He pointed out that sufficiency or adequacy of the material was not a matter into which the Court could go and since the material disclosed was relevant, germane and had rational nexus with the ground of interests of general public for which the petitioner's passport had been impounded, the impugned decision could not be interfered with by this Court. On the point of mala fides it was contended that having regard to the reasons given by the Central Government and having regard to the material disclosed on the basis of which the impugned decision had been taken it could never be urged that the impugned decision was taken for any extraneous purpose as suggested; in fact, Mr. Desai appearing for respondent No. 3 urged that in view of the supplemental affidavit filed by Shri Kazi the ground of mala fide as suggested by the petitioner would no longer survive. As regards the vires of the provisions of Section 10(5)(c) of the Act Mr. Joshi contended that the challenge on the ground submitted was not maintainable and the relevant provision of the Act was not violative of Article 14 of the Constitution.

8. At the outset it may be stated that in the view which I am taking on the first two contentions raised by Mr. Sorabjee, it will not be necessary for me to go into the question of mala fides or the vires of Section 10(5)(c) of the Act. The petitioner, in my view, must, for the reasons which I shall indicate, succeed on the first two grounds on which he has challenged the impugned decision.

9. The first ground on which the impugned decision has been challenged by Mr. Sorabjee has been that the same was arrived at in breach of the principles of natural justice and fair play, inasmuch as, admittedly before arriving at that decision, no hearing was given to the petitioner nor was any opportunity given to him to have his say in the matter by the Central Government and according to Mr. Sorabjee, this was not a case where a passport was to be initially granted or refused to be granted but this was a case of impounding a passport which had been already granted to the petitioner which was valid upto July 27, 1972 and since the impugned decision entailed very serious civil consequences it was absolutely essential on the part of the Central Government to have given the petitioner prior notice and an opportunity to have his say in the matter before his passport was decided to be impounded and as such the non-observance of the principles of natural justice and fair play should render the impugned decision invalid or void. Mr. Sorabjee assumed for the purpose of argument that the decision to be taken by the Central Government under Section 10(5)(c) of the Act was an administrative decision, but even then, according to him, since this administrative decision was fraught with civil consequences, in the sense that the petitioner was being deprived of his fundamental right of personal liberty guaranteed under Article 21 of the Constitution, it was incumbent upon the Central Government to have afforded an opportunity to him to represent his case as also to controvert any adverse material that might be in possession of the Central Government and In support of his contention he relied upon four decisions viz. State of Orissa v. Binapani Dei : (1967)IILLJ266SC A.K. Kraipah v. Union of India : [1970]1SCR457 Hasmukhbhai v. R. Parthasarthy (1970) 12 G.L.R. 128 and B. v. Gaming Board [1970] 2 All E.R. 528. He pointed out that, as a result of the two Supreme Court decisions mentioned above, the principle has been well-settled that even in the case of administrative decision or administrative order when such decision or order involved civil consequences, the same must be made consistently with the rules of natural justice after informing the party concerned of the case which he has to meet, the evidence in support thereof and after giving an opportunity to that party of being heard and meeting or explaining the evidence against him. In the third decision reported in Hasmukhbhaiv. R. Parthasarthy a building permission had already been granted and the same could be revoked or cancelled by the Municipal Commissioner under Section 258 of the Bombay Provincial Municipal Corporation Act only if the said permission had been granted in consequence of any material misrepresentation or fraudulent statement and the question that arose was whether the Municipal Commissioner acting under Section 258 was required to observe principles of natural justice and fair play before cancelling the permission that had been already granted and the Court took the view that when an authority sought to revoke or modify a right which had already been conferred, it was ordinarily presumed that the authority exercising the power must act in a judicial spirit and the Court held that even where the proceeding under Section 258 of the Act was considered as an administrative proceeding, the duty to act in consonance with the principles of natural justice could yet be present because an authority exercising an administrative power was as much required to act justly and fairly and not arbitrarily and capriciously as an authority exercising quasi judicial or judicial power. The English decision on which Mr. Sorabjee has relied was a case under the Gaming Act, 1968 which required the Gaming Board for Great Britain to have regard to certain matters specified in Schedule 2, para. 4(5) before issuing or refusing to issue a certificate of consent for the purpose of application for licence and the question raised was whether the Board was obliged to observe the rules of natural justice and Lord Denning, Master of Kolls, held that the Board was bound to observe the rules of natural justice. On p. 534 of the Report the learned Law Lord observed as follows:.The Act provides in terras that, in determining whether to grant a certificate, the board 'shall have regard only' to the matters specified. It follows, I think, that the board have a duty to act fairly. They must give the applicant an opportunity of satisfying them of the matters specified in Schedule 2, para 4 (5). They must let him know what their impressions are so that he can disabuse them. But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office (Ridge v. Jialdwin [1963] 2 All E.R. 66, or depriving him of his property, as in Cooper v. The Wandsworth Board of Works (1863) 14 C.B. 180 After all, they are not charging him with doing anything wrong. They are simply enquiring as to his capability and diligence and are having regard to his character, reputation and financial standing. They are there to protect the public interest, to see that persons running the gaming clubs are fit to be trusted.

The learned Law Lord, it may be pointed out, went on to observe that the Board, while investigating the credentials of the applicant, could and should receive information from the police and from other reliable sources, much of which was bound to be confidential but the applicant must be given a chance of answering it subject to the qualification that the source of information need not be disclosed as such disclosure would put their informant in peril or otherwise be contrary to public interest.

10. Mr. Sorabjee also invited my attention to a recent judgment of the Supreme Court reported in Purtabpur Co. v. Cane Commr., Bihar : [1969]2SCR807 where the Court has upheld as valid a distinction between an order revoking or modifying a licence already granted and an order initially refusing to grant a licence in the context of applicability of the rules of natural justice and relied upon the following relevant observation occurring in para. 18 of the judgment (p. 1902):

The impugned orders (under ol. 6 of Sugar Cane Control Order 1966) are similar to orders revoking or modifying licences. It would not be proper to equate an order revoking or modifying a licence with a decision not to grant a licence.

11. Relying upon the aforesaid authorities Mr. Sorabjee contended that since in the present case the decision to impound the petitioner's passport has entailed grave civil consequences, in that it has prejudicially affected his fundamental right of personal liberty guaranteed under Article 21 of the Constitution and his right to go abroad even before the expiry of the normal three years' period it was incumbent upon the Central Government to have given him a hearing and to let him know what its impressions were so that he could have disabused the mind of the Central Government but since admittedly no such hearing was given the impugned decision was liable to be quashed. I find considerable force in this contention of Mr. Sorabjee.

12. Mr. Joshi for respondents Nos. 1 and 2 did not seriously dispute that the impugned decision has entailed civil consequences qua the petitioner, inasmuch as, the same has prejudicially affected the personal liberty guaranteed to the petitioner under Article 21 of the Constitution and has made it impossible for him to leave this country. But he contended that even so it was not as if that in the case of every administrative decision involving civil consequences, principles of natural justice were required to be followed. In the first place, according to him, rules of natural justice are not precise rules of unchanging content, their scope varies according to the context and secondly these rules can operate in areas not covered by any law validly made i.e. these cannot supplant the law but supplement it. In other words, in areas covered by any law the particular enactment may cast a duty to apply the principles of natural justice or it may exclude either expressly or by necessary implication the applicability of principles of natural justice. In support of his submission he relied upon the following passage occurring under the heading 'Natural Justice' in S.A. de Smith's Constitutional and Administrative Law (1st edn.), at p. 557:

The rules of natural justice are minimum standards of fair decision-making imposed by the common law on persons and bodies who are under a duty to 'act judicially'. There are two rules of natural justice : Nemojudex in causa sua (nobody is to be judge in his own cause) and audi alteram partem (hear the other Ride; the parties are to be given a fair hearing). They were first applied to proceedings in courts of justice; they were extended by analogy to various administrative law situations. They are not precise rules of unchanging content; their scope will vary according to the context, and in some recent oases they appear to have been endowed with a kaleidoscopic unpredictability. Even where they are prima facie applicable, they may be partly or wholly excluded by clear statutory language or necessary implication.

He also relied upon certain observations of the Supreme Court in 'Union of India v. J.N. Sinha : (1970)IILLJ284SC where the position of rules of natural justice in the context of an enactment of the Legislature has been clarified. The relevant head-note (C) runs as follows:

Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas riot covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the principles of natural justice, the Courts should do so. But if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the princely les of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.

Relying upon these observations Mr. Joshi contended that the question whether the passport authority, namely, the Central Government in this case should have given a hearing to the petitioner before arriving at its decision or not must depend upon whether the rule audi alteram partem could be consistently read with the provision contained in Section 10(3)(c) or whether the application of that rule has been either expressly or by necessary implication excluded by the enactment and, according to him, having regard to the language of the relevant provision and the subject-matter dealt with by it, it will have to be held in this case that the rules of natural justice have been excluded and if they were so excluded the impugned decision could not be challenged on the ground that hearing had not been given to the petitioner before the same was arrived at.

13. There could be no dispute about the propositions that have been enunciated by the Supreme Court in the aforesaid decision in J.N. Sinha's case but the question is whether the rules of natural justice, particularly the rule audi alteram partem has been excluded by the provisions of the Passports Act especially when the passport authority is exercising the power conferred on it to impound a passport already issued under Section 10(3) of the Act. Mr. Joshi fairly stated that there was no exclusion of the rules of natural justice in express terms but according to him, the exclusion arose by necessary implication in view of the language used and the subject-matter dealt with by the relevant provision. It will, therefore, be necessary to scrutinise the provisions of Section 10 of the Act. Section 10 deals with variation, impounding and revocation of passports and travel documents. Under Sub-section (1) power has been conferred upon the passport authority to vary or cancel the endorsements on a passport or travel documents in certain circumstances; 'then comes Sub-section (3) which confers power on the passport authority to impound or revoke a passport or travel document and that sub-section runs as follows:

10. (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;

(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 (1) requiring Mm 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.

Sub-section (4) provides for cancellation or revocation of a passport or travel document on the application of the holder thereof; and Sub-section (5) on which, some reliance was placed by Mr. Joshi runs as follows:

(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 (1) 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.

The other material provision which may be noticed at this stage is the provision contained in Section 11, which deals with Appeals. Under Section 11(1) an appeal to the prescribed appellate authority has been provided against an order of the passport authority impounding or revoking a passport under Section 10(5) subject to the proviso that no appeal shall lie if the authority passing such order happens to be the Central Government. Sub-section (5) and the proviso thereto are material and these run as follows:

(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.

It was not seriously disputed by Mr. Joshi that if action was proposed to be taken under Clauses (a), (b). (d), (e), (f), (g) or (h) of Sub-section (3) of Section 10, the passport authority would be required to give a hearing to the holder of the passport before his passport was decided to be impounded; for instance under Clause (a) the holder could satisfy the passport authority that he was not in wrongful possession of the document, or under Clause (b) it would be open to him to satisfy the authority that no suppression of material information had occurred or no wrong information was provided by him while obtaining his passport, or under Clause (d) he was entitled to satisfy the authority that the offence of which he has been convicted does not involve moral turpitude or to take an extreme case, that he was not the person convicted at all but some other holder of passport bearing the same name was convicted, or under Clause (f) he could satisfy the authority that he has not contravened any condition of his passport. But Mr. Joshi contended that so far as Clause (c) was concerned, having regard to the language used therein and having regard to the subject-matter no prior notice nor hearing was contemplated and such opportunity could not be given; the language and the subject-matter by necessary implication excluded the rule audi alteram partem. According to him, the words 'if the passport authority deems it necessary so to do' occurring in Clause (c) suggest that the entire matter covered by that clause has been left to the subjective satisfaction of the passport authority and as such there was no question of giving a hearing to the holder of the passport and secondly the subject-matter dealt with by this provision pertains to aspects like sovereignty and integrity of India, the security of India and friendly relations of India with any foreign country and when the decision to impound a passport is to be taken having regard to one or the other of such aspects how could a hearing be given to the holder before taking the decision? He thus urged that application of the rule of audi alterant partem has been excluded. He further derived strength to his aforesaid argument by relying upon Sub-section (5) of Section 10 in which the same phraseology has been used as in Clause (o) of Sub-section (3) and the same aspects had to be borne in mind by the authority while deciding the question as to whether the statement of reasons recorded for impounding of a passport should be furnished to the party concerned or not. He pointed out that under Section 10(5) the passport authority making an order of impounding or revoking a passport under Section 10(J) is required to record in writing a brief statement of the reasons for making such order and to furnish to the holder of the passport on demand a copy of the same unless 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. According to him, this very provision which enable the passport authority to withhold from the holder the reasons for which his passport is impounded out of considerations 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 clearly suggests that when the order impounding a passport is made under Section 10(5)(c) no hearing to the holder could be given before a decision in that behalf is taken.

14. In support of his contention Mr. Joshi referred me to two English decisions: one in Rex v. Leman Street Police Station Inspector. Venice of Ex Parte [1920] 8 K.B. 72 and the other in Beg. v. Governor of Brixton Prison. Ex parte Soblen [1963] 2 Q.B. 243. Both these cases were in connection with deportation made against an alien under emergency legislation. In the former case Article 12, para. 1, of the Aliens Order, 1919 made under the Aliens Restriction Act, 1914 empowered the Secretary of State to deport an alien whenever he deemed this to be 'conducive to the public good' and when the deportation order was impugned the Court held that the Home Secretary was exercising purely executive functions, importing no duty to act judicially and therefore he was not bound to hold an inquiry or give the person against whom he proposed to make a deportation order the opportunity of being heard. In the latter case also a deportation order served on the alien, one Soblen, under Article 20(2)(b) of the Aliens Order, 1953 was challenged on the ground that no opportunity of hearing was given before serving the deportation order and the Court of Appeal following the earlier decision in Venice of's case -- the Aliens Order, 1953 contained self-same words as were used in Aliens Order, 1919 which obtained in Venice of's case -- held that the alien had no right to be heard before the deportation order was made and served on him. Mr. Joshi pointed out that when the subject-matter dealt with by the relevant legislation pertained to deportation of aliens the Court while construing the relevant provision took the view that the rule of prior notice and hearing did not apply and was excluded by necessary implication and as such in the same way having regard to the subject-matter dealt with by Section 10(5)(c) it should be held that the application of the said rule has been excluded by necessary implication.

15. Apart from decided cases to which I will come a little later, the question whether the rules of natural justice are excluded by necessary implication or not must depend upon the true and proper construction of the relevant provision of the enactment. As has been observed by the Supreme Court in J.N. Sinha's case whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power. In the present case the express words of the relevant provision admittedly do not exclude the operation of audi alterant partem rule; the nature of the power conferred on the passport authority is to impound or revoke a passport already granted; the purpose for which it is conferred is to prevent a holder of the passport in appropriate cases falling within the several sub-clauses from leaving this country and the effect of the exercise of that power is to make an inroad on the fundamental right of personal liberty guaranteed to an Indian national under Article 21 and prejudicially affect his right to go abroad on the strength of the passport already issued to him. Unlike under English law when an Englishman's desire to move out of the United Kingdom is dependent upon the issuance of a passport to him by the Passport Office which is a sub-department of Foreign and Commonwealth Office and which issuance is done under the royal prerogative -- the grant, refusal, impounding and revocation being within the absolute discretion of the Crown, in India the right to travel abroad having been included in the personal liberty spoken by Article 21 has been raised to the position of a fundamental right and as such no Indian national can be deprived of it except according to procedure established by law (vide Satwant Singh v. A.P.O., New Delhi : [1967]3SCR525 as also A.G. Kazi v. C.V. Jethwani : AIR1967Bom235 where the theory of royal prerogative has been rejected). It was in view of the Supreme Court's decision in Satwant Singh's case that Parliament enacted the Passports Act, 1967 with the object of regulating the right of departure from India of the citizens of this country. Section 10(5) confers power on the passport authority to impound or revoke a passport already granted and the exercise of that power must be taken to have been circumscribed by the circumstances and conditions set out therein. Since the effect of the exercise of that power is to make an inroad on the aforesaid fundamental right, the question arises whether before doing so the holder should be given an opportunity of having his say in the matter? Or is there something in the relevant provision which suggests exclusion of the application of the rule audi alterant partem which normally will apply where fundamental right is being adversely affected? Mr. Joshi has pressed two aspects: one the language used in the relevant provision and the other the subject-matter dealt with by it, for implying the exclusion of the rule. In my view, neither of the aspects mentioned by him taken singly or even cumulatively leads to such exclusion by necessary implication. First, he has relied upon the words 'if the passport authority deems it necessary so to do' occurring in Clause (c) which according to him suggest that the entire matter covered by Clause (c) has been left to the subjective decision of the passport authority; in other words, these words suggest that not merely the necessity or expediency to impound a passport has been left to the subjective satisfaction of the passport authority but even the question whether it is necessary to do so on the grounds mentioned therein has also been left to the subjective satisfaction of the passport authority and as such no question of giving a hearing arises. In the first place, as will be pointed out later while discussing the second contention of Mr. Sorabjee, it is not possible in view of the Supreme Court's decisions in Barium Chemical's case and Rohtas Industries' case to accept the submission that the words relied upon have the effect of leaving the entire matter covered by el. (c) to the subjective satisfaction or subjective decision of the passport authority; these words undoubtedly show that the aspect of necessity or expediency to impound a passport has been left to the subjective satisfaction of the passport authority but the exercise of the power is conditioned by the existence of one or the other of the grounds mentioned in that clause and if challenged the authority will have to show prima fade that it had materials before it on which it could reasonably come to the conclusion that it was necessary to impound the passport on that particular ground. In other words, the entire matter covered by Clause (e) has not been left to the subjective decision of the passport authority. Secondly, the words 'if the passport authority deems it necessary so to do' in Clause (c) are similar to the words 'if the passport authority is satisfied' occurring in Clause (a) of Sub-section (3) and it was not disputed by Mr. Joshi that before taking action to impound a pass port under Clause (a) the holder was required to be heard; if so, there is no reason to construe the words of Clause (c) differently. Thirdly, I may point out that expressions such as 'where it appears to' or 'if it appears to the satisfaction of or 'if the authority considers it expedient' or 'if the authority is of the opinion that' have been held to be formulae which are introductory of the matter to be considered and do not give any guidance on the question of audi alteram partem rule. What the approach of the Court should be in such cases has been indicated by the Privy Council in Durayappah v. Fernando [1967] 2 A.C. 337. In that case by Section 277 of the Municipal Councils Ordinance as amended by Act No. 12 of 1959 power had been conferred upon the Minister to direct that Council shall be dissolved, 'if it appears to the Minister that a municipal council is not competent to perform, or persistently makes default in the performance of, any duty or duties imposed upon it, or persistently refuses or neglects to comply with any provision of law' and upon the question as to whether the council that was sought to be dissolved should be heard before the Minister made his order dissolving the same, after referring to earlier decision of the Supreme Court in Sugathadasa v. Jayasinghe (1958) 59 N.L.R. 457 and after disapproving the approach indicated in that decision the Privy Council stated what the correct approach should be. On page 348 this is what the Privy Council stated:

Upon the question of audi alteram partem the Supreme Court followed and agreed with the earlier decision of Sugathadasa v. Jayasingle, a decision of three judges of the Supreme Court upon the same section and upon the same issue, namely, -whether a council was not competent to perform its duties. That decision laid down

As a general rule that words such as 'where it appears to...'or 'if it appears to the satisfaction of...'or 'if the...considers it expedient that...' or'if the... is satisfied that...' standing by themselves without other words or circumstances of qualification, exclude a duty to act judicially.'

Their Lordships disagree with this approach. These various formulae are introductory of the matter to be considered and are given little guidance upon the question of audi alteram partem. The statute can make itself clear upon this point and if it does cadit quaestio. If it does not then the principle stated by Byles J. in Cooper v. Wandsworth Board of Works must be applied. He said :

A long course of decision, beginning with Dr. Bentley's case (1723) 1 Str. 557 8 Mod. Rep. 148 and ending with some very recent oases, establish, that, although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature'.

Therefore, the words 'if the passport authority deems it necessary so to do' will have to be regarded as introductory of the matter that is required to be considered by the Central Government and these words by themselves cannot afford any guidance on the question as to whether the rule audi alteram partem should be followed or not; in other words, there is nothing in the language used in Section 10(3)(c) which suggests the exclusion of that rule.

16. Coming to the subject-matter dealt with by Clause (c) of Sub-section (3) of Section 10, it is true the said provision deals with aspects like (a) the sovereignty and integrity of India, (b) the security of India, or (c) friendly relations of India with any foreign country and the provision confers power on the passport authority to impound a passport in the interests of any one of the things mentioned above but simply because the aforesaid aspects are mentioned in Clause (c) for which an order impounding a passport could be made that by itself cannot lead to the inference. that the rules of natural justice are excluded. Clause (c) also mentions 'general public interest' for which a passport could be impounded and when that is the ground a large number of cases could be conceived where action of impounding the passport could be taken consistently with or after following the rules of natural justice; even when the ground happens to be one relating to sovereignty and integrity of India or security of India or India's friendly relations with any foreign country cases could be conceived, though few in number, where action of impounding a passport could be taken consistently with or after following the rules of natural justice. In my view, something more is required than the mere aspects mentioned in Clause (c) of Sub-section (5) of Section 10 in order to exclude the principles of natural justice by necessary implication, for instance special circumstances like urgency, emergency, need for secrecy, possibility of the person concerned thwarting remedial or preventive action must be shown to exist. I would refer to the following passage in S.A. de Smith's 'Constitutional and Administrative Law' occurring at p. 562:

Clearly, not every decision affecting individual interests has to be preceded by prior notice and an opportunity to be heard. It may be quite impracticable because of a paramount need for secrecy, or because the number of persons affected is so large, or because delay would make it impossible to take urgent remedial on preventive action; or there may be adequate substitutes (for example, inspection, tests, interviews) for a hearing. Again, it may be impossible to obtain certain information at all (for example, highly confidential reports) if it is known that disclosure to the person concerned (for example, an applicant for a licence or a company tendering for a contract) will take place. Even where a duty to observe natural justice is applicable, the scope of the obligation imported may be modified in the public interest or the interests of the parties -- for example, where it would be harmful to an applicant for social security benefit to have a distressing medical report disclosed to him, or where the interests of infants would suffer if a psychiatric report made to the court were to be publicized.

I may also refer to a decision of the Privy Council in the case of De Verteuil v. Knaggs [1918] A.C. 557 where observations to the similar effect have been made by Lord Parmoor. In that case under Section 203 of the Immigration Ordinance of Trinidad, power had been conferred upon the Governor, 'on sufficient ground shown to his satisfaction', to transfer the indentures of immigrants from one employer to another and the question that arose was whether such power could be exercised by the Governer without enquiry and without giving an opportunity to the person against whom a complaint had been made and from whose estate the indentured immigrants were to be transferred to another estate. Lord Parmoor observed as follows (p. 560):.The Ordinance does not prescribe any special form of procedure, but there is an obvious implication that some form of inquiry must be made, such as will enable the Governor fairly to determine whether a sufficient ground has been shown to his satisfaction for the removal of indentured immigrants.... What is the procedure which in such a case the law will imply when the Legislature is silent The acting Governor was not called upon to give a decision on an appeal between parties, and it is not suggested that he holds the position of a judge or that the the appellant is entitled to insist on the forms used in ordinary judicial procedure.... Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity to correct or controvert any relevant statement brought forward to his prejudice. It must, however, be borne in mind that there may be special circumstances which would justify a Governor, acting in good faith, to take action even if he did not give an opportunity to the person affected to make any relevant statement, or to correct or controvert any relevant statement brought forward to his prejudice. For instance, a decision may have to be given on an emergency, when promptitude is of great importance; or there [might be obstructive conduct on the part of the person affected. Their Lordships, however, do not find any suggestion of such conditions in the case under appeal.

(Italics mine.)

I may mention that the aforesaid observations of Lord Parmoor were approved by Lord Reid in Ridge v. Baldwin [1964] A.C. 40 where the entire case law bearing on the subject has been admirably summarised. In my view, having regard to the passage in S.A. de Smith's 'Constitutional and Administrative Law', which I have quoted above, and having regard to the observations of Lord Parmoor in I)e Yerteuil v. Knaggs it seems to me clear that unless special circumstances are made out, such as where there is a paramount need for secrecy or where a decision may have to be given on an emergency, when promptitude is of great importance, or where delay would make it impossible to take urgent remedial or preventive action or where obstructive conduct on the part of the person affected is apprehended or where there may be adequate substitutes (such as inspection, tests, interviews) for a hearing, etc. the normal rule of audi alter am partem will be attracted and will have to be followed, especially when the authority concerned is taking a decision prejudicially affecting the fundamental right of the person concerned. In the instant case, there is no suggestion, whatsoever that there existed any such special circumstances; in fact, though the impugned decision was taken on June 11, 1971 the same was communicated to the petitioner on November 25, 1971, a circumstance which negatives the element of urgency or emergency. Therefore, the mere fact that aspects like the interests of the sovereignty and integrity of India, the security of India and friendly relations of India with any foreign country have been mentioned in the relevant provision of Section 10(3)(c) cannot lead to the inference of exclusion of the rule audi alterant partem in every case covered by that provision.

17. Turning to the two English decisions in Vewicoff's case and Soblen's case on which Mr. Joshi relied it must be pointed out that both the decisions are clearly distinguishable from the instant case. In the first place, both -the case dealt with foreign aliens having no right to be in the United Kingdom except by licence of the Crown and the legislation was in relation to such persons. Secondly, the Court laid emphasis on the amplitude of Home Secretary's discretion in the context of emergency and the impracticability of giving a prior notice in such a case. Thirdly, as has been observed by Lord Denning in a recent case again dealing with an alien viz. the case of Schmidt v. Sec. of State, Home Affairs [1969] 2 Ch. 149 'the judgments in those cases were based on the fact that the Home Secretary was exercising an administrative power and not doing a judicial act, but that distinction is no longer valid'. Lastly, I may point out that in both the said cases, the Court also laid emphasis on the aspect that the person against whom it was intended to make a deportation order would, the moment he had notice of that intention, take care not to present himself and would take steps to evade apprehension; in other words, in eases dealing with deportation of foreign aliens, factors such as need to take emergent decision and the possibility of the person concerned thwarting the remedial or preventive action would normally be present and it is by reason of the presence of such factors that the rule audi alteram partem was held to have been excluded. The two decisions on which Mr. Joshi has relied, therefore, rather support the view which I have expressed above. I may mention that in Schmidt v. Sec. of State, Home Affairs the plaintiffs, who were alien students, had been given leave to enter the United Kingdom before July, 1968, initially for a period of one month; the periods had been extended to the end of August and September, 1968 respectively and when applications were made on their behalf to the Home Office for further extension of their stay until November and December, 1968 to complete their studies, the Home Secretary rejected the applications and the Court of Appeal held that as the plaintiffs had no right to an extension of their stay, the Home Secretary was under no duty to give them a hearing or to hear their representation and by rejecting their applications had not infringed the precepts of natural justice. However, it will be interesting to note that on the question as to whether it would be obligatory on the part of the Home Secretary to give a hearing if the permission to stay already granted were to be revoked before the time mentioned therein were to expire, this is what Lord Denning has observed (p. 171) :.He (alien) has no right to enter this country except by leaves and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time.If his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations: for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, a foreign alien has no right -- and, I would add, no legitimate expectation -- of being allowed to stay. He can be refused without reasons given and without a hearing. Once his time hag expired, he has to go.

(Italics mine.)

The above observations clearly indicate to what length Lord Denning was prepared to go on the question of application of audi alterant partem even in the case of a foreign alien who had no right to enter the U.K. except with leave of the Crown and to remain there for such period as he may be permitted to do. Lord Denning has made it clear that even in the case of a foreign alien if his permit is required to be revoked before the time limit expires, such alien would be entitled to be heard before such action was taken, for that would deprive him of legitimate expectation of stay in the U.K. for the permitted time. I may point out that in the instant case the Central Government was dealing not with a foreign alien but with Indian citizen having a fundamental right of personal liberty including the right to travel abroad, for which he held a valid passport up to July 27, 1972 and his passport has been sought to be impounded or revoked long before the period was to expire without giving him any hearing. As stated earlier, in the absence of any special circumstances being made out, I do not think that the Central Government was entitled to depart from the normal rule of audi alterant, pattern and the mere fact that aspects like the interests of the sovereignty and integrity of India, the security of India and friendly relations of India with any foreign country have been mentioned in Section 10(3)(c) would not lead to the inference of exclusion of that rule. In my view, therefore, there is nothing in the subject-matter dealt with by the aforesaid provision which points the exclusion of the application of the rule audi alteram partem.

18. Mr. Joshi next relied upon Section 10(5) of the Act in support of his contention. He pointed out that the phraseology used in the latter part of Sub-section (5) is the same as has been used in Clause (c) of Sub-section (3) and, according to him, this fact suggests that application of the rule audi ultra partem has been excluded whenever action to impound the passport is being taken under Section 10(3)(c). He pointed out that under Section 10(5) it was open to the passport authority not to furnish a copy of statement of reasons to the holder of the passport if in its opinion it was not in the interests of sovereignty and integrity of India, security of India, friendly relations of India with any foreign country or in the interests of general public to do so; he urged that if reasons could not be disclosed on grounds mentioned in Section 10(5), then obviously no hearing could be given to the holder whose passport was sought to be impounded under Section 10(3)(c). According to him, identical phraseology having been used in the two provisions it was clearly intended that no hearing was to be given in a case falling under Section 10(5)(c). It is not possible to accept this submission for more than one reason. If the provision contained in Section 10(5) is carefully scrutinized two aspects stand out very clearly. In the first place, the matter dealt with by Sub-section (5) is entirely different from the matter dealt with by Clause (c) of Sub-section (3). In Clause (c) of Sub-section (3) four grounds have been set out for which a passport authority can impound a passport if that authority deems it necessary so to do, while under Sub-section (5) the very grounds have been mentioned in the latter part thereof, as being the grounds on the basis of which reasons for impounding the passport need not be furnished to the holder of the passport. The subject-matters dealt with by the two provisions, therefore, are entirely different. Secondly, if it were the intention of the Legislature that statement of reasons should not be furnished to the holder of the passport in every ease of impounding falling under Section 10(5)(c), it would have clearly stated so in Sub-section (5). Sub-section (5) as it stands provides that whenever an order impounding a passport has been made under Section 10(5) the passport authority shall record in writing a brief statement of reasons for making such order and then the sub-section goes on to provide as follows:.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 w111 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.

Mr. Joshi wanted me to read the aforesaid provision contained in Sub-section (5) to mean that in every case where the impounding of a passport is done under Clause (c) of Sub-section (5) statement of reasons had to be refused. I am unable to read Sub-section (5) in this fashion. The words used in Sub-section (5) are 'unless in any case' and not 'unless in every ease' falling tinder Clause (c) of Sub-section (5) of Section 10. In other words, in my view, it is clear that even in some eases where the impounding has been done under Clause (e) of Sub-section (5) of Section 10 the passport authority could furnish a copy statement of reasons to the holder of the passport and. if that be the correct interpretation of Sub-section (J), it is difficult to accept Mr. Joshi's argument that because reasons are not to be disclosed no hearing is contemplated when order is made under Clause (c) of Sub-section (5) of Section 10, In my view, therefore, even after reading the provision contained in Section 10(5)(c) along with Section 10(5) it is not possible to come to the conclusion that on true interpretation or construction of the relevant provision the principles of natural justice have been excluded by necessary implication as suggested by Mr. Joshi. In the absence of such exclusion by necessary implication, the normal rule of giving a hearing will apply.

19. I may now refer to the provisions of Section 11 of the Act which deal with appeals, which, in my view, have a bearing on the question which I am considering at the moment. As already pointed out Section 11 provides for an appeal being preferred by any person aggrieved by an order passed by the passport authority under Section 10(5) of the Act to the prescribed appellate authority, subject to the proviso that no appeal shall lie against any order made by the Central Government. The material provision occurs in Sub-section (5) of Section 11 and the proviso thereto. Section 11(5) provides as follows:

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.

Rule 12 of the Passports Rules, 1967 indicates the appellate authorities under the Act and from the table given under that rule, it will appear clear that against an order made by the passport authority, other than the Central Government, under Sub-section (5) of Section 10 the appeal lies to the Chief Passport Officer, Ministry of External Affairs, New Delhi. Rule 14 prescribes the procedure to be followed by appellate authority and that rule provides that on receipt of an appeal, the appellate authority may call for the records of the case from the authority who passed the order appealed against and after giving the appellant a reasonable opportunity of representing his case pass final orders. In other words, both the substantive provision contained in proviso to Section 11(5) as well as Rule 14 clearly provide that when the matter goes in appeal the holder of a passport against whom impounding order has been made has been given a right of hearing, a right of representing his case before the appellate authority. If a hearing and an opportunity to represent his case is contemplated at appellate stage, it would not be unreasonable to hold that the passport authority acting under Section 10(5)(c) will have also to follow the rule audi alteram partem before passing an adverse order against the holder, unless of course special circumstances are made out. In any event such a provision which is to be found at appellate stage would rule out exclusion by necessary implication of audi alteram partem rule at the initial stage as was suggested by Mr. Joshi.

20. In my view, therefore, irrespective of the inference suggested by Section 11(5) and Rule 14, on a proper construction of the relevant provisions of the Passports Act, principles of natural justice and fair play are not excluded by necessary implication as was contended for by Mr. Joshi and, therefore, since the impugned decision which has civil consequence was arrived at without giving a hearing to the petitioner, the same will have to be quashed.

21. The next contention on the basis of which the impugned decision is challenged is more formidable than the first one and goes to the root of the matter. What has been contended by Mr. Sorabjee is that though under Section 10(5)(c) the formation of opinion as to the necessity or expediency of impounding a passport has been left to subjective satisfaction of the passport authority which was the Central Government in the instant case, the exercise of that power was conditioned by the Government deeming it necessary in the interests of the general public to pass such an order and the Government's decision was open to a limited judicial scrutiny, namely the Court could see whether the condition upon which power was being exercised existed, in the sense that the material on the basis of which power was sought to be exercised had rational connection with the ground on which the decision was to he taken and he urged that in this case the material on the basis of which Government took the impugned decision, which material has now been disclosed in the supplemental affidavit dated March 4, 1972, was such that no reasonable body of persons could come to the conclusion that it was in the interests of general public to impound the petitioner's passport. In other words, the material disclosed had no rational nexus with the ground on which the impugned decision was taken and as such the same was liable to be quashed. On the other hand, Mr. Joshi contended that the entire matter covered under Clause (c) of Sub-section (5) of Section 10 has been left to the subjective satisfaction of the Central Government and that such subjective decision of the Central Government could not be called in question by any Court of law. In the alternative he contended that if the Court came to the conclusion that such decision of the Government was open to a limited judicial scrutiny as contended by Mr. Sorabjee, then the material disclosed in the supplemental affidavit was clearly relevant and germane to the issue that had to be decided by the Central Government and the sufficiency or adequacy of the material could not be gone into by any Court. In other words, he urged that the material on the basis of which the impugned decision has been taken had rational nexus with the ground on which the decision was taken.

22. In my view, in view of the Supreme Court decisions in Barium Chemical's case, Rohtas Industries' case and V.P. Electric Co. v. State of U.P. : [1969]3SCR865 it would be difficult to accept the first part of Mr. Joshi's contention. A number of cases were referred to by Mr. Sorabjee in support of his contention that the decision of the Central Government under Section 10(5)(c) would be subject to a limited judicial scrutiny, but it is unnecessary to refer to all those decisions and I propose to refer to only one decision of the Supreme Court in 77. P. Electric Co. v. State of U.P. where the language of the concerned enactment which came up for consideration before the Court happened to be very similar to the language used in Section 10(5)(c) of the Passports Act. In that case the Supreme Court was concerned with the provisions of Section 3(2)(e) of the Indian Electricity Act 9 of 1910 as amended by the V.P. Act 30 of 1961 whereunder notwithstanding the grant of a licence to supply electricity to a specified area or locality to a licensed, the Government was empowered to supply energy to consumers within the same area or locality ' 'where the State Government deems such supply necessary in public interest' and the question was what was left to the subjective decision of the State Government and to what extent such decision could be scrutinised by a Court of law. The relevant provision of the enactment ran as follows:

Section 3(2)(e). the grant of a licence under this Part for any purpose shall not in any way hinder or restrict --

(i) the grant of a licence to another person within the same area of supply for a like purpose; or

(ii) the supply of energy by the State Government or the State Electricity Board within the same area, where the State Government deems such supply necessary in public interest;

Relying on this provision direct supply of energy was given to Hind Lamps notwithstanding the licence that had been granted to the petitioner company which action was challenged. With regard to the aforesaid provision the High Court had taken a view that the State Government was the sole judge of the question whether direct supply of energy to Hind Lamps was: or was not in the public interest and that the test was of a subjective nature and no objective test was contemplated. This view of the High Court was expressly disapproved by the Supreme Court in para. 10 and the correct position was set out in para. 11 of the judgment. The relevant paras. 10 and 11 run as follows (p. 25) :

By the amendment made by U. P, Act 80 of 1961 electrical energy may be supplied by the State Government or the State Electricity Board within the same area in respect of which a license is granted only if the State 'Government deems such supply 'necessary in public interest'. The High Court observed that 'the State Government was the sole judge of the question whether direct supply of energy to Hind Lamps was or was not in the public interest, The test is of a subjective nature, no objective test being contemplated. Thus it is not open to this Court to examine whether it was necessary in the public interest. The subjective opinion of the Government is final in the matter, and the same is not justiciable or subject to judicial scrutiny as to sufficiency of the grounds on which the State Government has formed its opinion. In other words the Legislature has left it to the sole discretion of the State Government to decide whether a direct supply of energy was in the public interest.'

We are unable to agree with that view. By Section 8(2)(e) as amended by the U.P. Act 80 of 1961, the Government is authorised to supply energy to consumers within the area of the licensee in certain conditions: exercise of the power is conditioned by the Government deeming it necessary in public interest to make such supply. If challenged, the Government must show that exercise of the power was necessary in public interest. The Court is thereby not intended to sit in appeal over the satisfaction of the Government. If there be prima facie evidence on which a reasonable body of persons may hold that it is in the public interest to supply energy directly to the consumers, the requirements of the statute etc fulfilled. Normally a licensee of electrical energy, though he has no monopoly, is the person through whom electrical energy would be distributed within the area of supply, since the licensee has to lay down electric supply lines for transmission of energy and to maintain its establishment. An inroad may be made in that right in the conditions which are statutorily prescribed. In our judgment, the satisfaction of the Government that the supply is necessary in the public interest is in appropriate oases not excluded from judicial review.

In view of the above observations of the Supreme Court it will be clear that the Central Government's decision under Section 10(3)(c) of the Passports Act where similar phraseology has been used will be subject to judicial review in a limited manner as indicated therein and I feel that the first contention of Mr. Joshi will have to be rejected. It is clear that under Section 10(5)(c) the passport authority has been given power to impound a passport already granted but the exercise of power is conditioned by the Government deeming it necessary in public interest to do so. It is true that the Court will not sit in appeal over the satisfaction of the Government and if there be prima facie evidence on which a reasonable body of persons may hold that it is in public interest to impound the passport, the requirements of the statute could be said to have been fulfilled, but the satisfaction of the Government that impounding of a passport is necessary in the interests of general public would in appropriate eases be not excluded from judicial review in a limited sense that is to say, if challenged the Government will have to show prima facie that the exercise of the power was necessary in public interest by giving some clue as to the material on the basis of which the decision was taken and by further showing that such material was prima facie relevant and germane and had rational nexus with that ground. It is further well settled that if the nexus or connection between such material and the ground is problematic or fanciful or too remote, it is no real nexus at all and the decision will be liable to be set aside (vide Anant Janardhan v. M.A. Deshmukh (1965) 68 Bom. L.R. 256. That being the position in law, it will be necessary for me to consider the material that has been disclosed by the respondents in Shri Kazi's supplemental affidavit dated March 4, 1972 and to find out whether the material at least prima facie has rational or reasonable connection with the ground of general public interest.

23. It may be stated that the material on the basis of which the impugned decision was taken by the Central Government has been set out in paragraph 2 of Shri Kazi's supplemental affidavit dated March 4, 1972 and the question would be whether the material so disclosed is such that on that basis a reasonable body of persons could come to the conclusion that it was in the interests of general public to impound the petitioner's passport. The relevant portion of paragraph 2 runs as follows1:

One Sarai J. Patel was the Manager of the Branch of the Central Bank of India in London till about March 1970. Very serious frauds were detected in this Branch in or about April 1970 and the transactions involved in the said frauds related to unauthorised and fraudulent guarantees issued by the said Sami J. Patel to the extent of Rs. 2.15 crores. The petitioner was the Accountant of the said Branch in London and was appointed as Acting Manager in place of the said Sami J. Patel sometime in April 1970. Investigations carried out by the Reserve Bank of India into the affairs of the said Branch in London of the Central Bank of India revealed that the petitioner had allowed drawings far in excess of the sanctioned limit and without any relation to the value of the securities to certain parties who were reported to be friends of or connected with the said Sami J. Patel and to whom the said Sami J. Patel had also unauthorised extended facilities. The Central Government is interested in successfully prosecuting the said fraud oases in London in the interests of the said nationalised Bank which are also the interests of the general public In view of the serious irregularities noticed in the case of the petitioner as aforesaid and in view of the likelihood that his continued presence in the United Kingdom or in any other country may prejudicially affect and/or jeopardise the interests of the said nationalised Bank in prosecuting the fraud cases in London, the Central Government deemed it necessary to impound the petitioner's passport in the interests of the general public under Section 10(8)(c) of the said Act.

Analysing the aforesaid material that has been furnished in the supplemental affidavit it will appear clear that in the first place it has been stated that during the regime of Sami J. Patel, who was the Manager of London Branch upto March 31, 1970, very serious frauds were detected in the London Branch in or about April 1970 and that the transactions involved in the said frauds related to unauthorised and fraudulent guarantees issued by Sami J. Patel to the tune of Rs. 2.15 crores; secondly, fraud cases (meaning presumably prosecutions) have been launched in London Courts in respect of the said frauds allegedly committed by Sami J. Patel and thirdly, the Central Government is interested in successfully prosecuting the said fraud cases and that is in the interests of general public, inasmuch as, the alleged frauds pertain to the funds of a nationalised bank. There could be no dispute that the successful prosecution of the fraud cases in London would be in the interests of the general public, inasmuch as, the funds involved in these fraud cases pertain to one of the nationalised banks like the Central Bank. So far there is no difficulty, but the question is whether the petitioner's connection with the said successful prosecution of fraud cases against Sami J. Patel has been satisfactorily brought out? What is the material on which it could be reasonably said that the petitioner's presence in United Kingdom would prejudicially affect the successful prosecution of the said fraud cases? On that aspect I feel that the affidavit is woefully deficient. On that aspect only two things have been set out: (1) that at the material time the petitioner was the Accountant of the London Branch; and (2) that during the investigations that were carried out by the Reserve Bank in the affairs of the London branch certain irregularities or unauthorised dealings on the part of the petitioner by way of allowing drawings far in excess of the sanctioned limit and without any relation to the value of the securities to certain parties who were reported to be friends of Sami J. Patel had come to light. However, I must observe that it is nowhere stated in the whole affidavit that these so-called irregularities or unauthorised actions on the part of the petitioner in granting or allowing drawings far in excess of the sanctioned limit and without any relation to the value of the securities to certain parties who were the friends of Sami J. Patel had any connection with the frauds which are said to have been perpetrated by Sami J. Patel himself while he acted as the Manager of the Central Bank. In fact, in the entire affidavit complete silence has been observed by Shri Kazi in this respect, which, to my mind, is quite eloquent and it must, therefore, be taken that the Central Government even after examining the Reserve Bank's Investigation Report of the London office was not in a position to connect the petitioner's irregularities or unauthorised dealings with the frauds allegedly committed by Sami J. Patel in respect of which prosecutions are pending in London Courts. The petitioner in his affidavit in rejoinder dated March 10, 1972 has categorically asserted that he was not concerned with Sami J. Patel nor with the very serious frauds of Sami J. Patel and that the successful prosecution of the said fraud cases in London against the said Sami J. Patel has nothing whatever to do with the irregularities and unauthorised dealings of his which formed the subject-matter of departmental enquiry that was held against him by the Central Bank through Enquiry Officer Shri Tipnis. The circumstance that the parties to whom the petitioner showed undue favour were reported to be friends of Sami J. Patel whom Sami J. Patel had himself favoured cannot carry the ease against the petitioner any further. It is thus clear that the so-called irregularities or unauthorised dealings noted by the Reserve Bank to which a reference is made in the supplemental affidavit being unconnected with the alleged frauds committed by Sami J. Patel, would become irrelevant in the context of successful prosecution of fraud cases against Sami J. Patel. The only other factor is that at the material time i.e. when the alleged frauds were committed by Sami J. Patel the petitioner was an Accountant in London office which could only mean that he might have or at the most must have come to know of the fraudulent dealings of Sami J. Patel, but surely his having knowledge thereof -- a feature which would be common to several subordinate officers who were then and are even now working in that branch -- cannot render his presence in 'United Kingdom such as would prejudicially affect or jeopardise the successful prosecution of fraud cases against Sami J. Patel. In view of this position which emerges from the examination of the material that has been placed by Shri Kazi in his supplemental affidavit before the Court, the question arises as to whether and how the petitioner's presence in London is in any way going to jeopardise or prejudicially affect successful prosecution of the fraud cases against Sami J. Patel and in that behalf the averment to be found in the said affidavit is to the following effect:

In view of the serious irregularities noticed in the ease of the petitioner as aforesaid and in view of the likelihood that his continued presence in the United Kingdom or in any other country may prejudicially affect and/or jeopardise the interests of the said nationalised Bank in prosecuting the fraud cases in London, the Central Government deemed it necessary to impound the petitioner's passport in the interests of the general public...

Two things have been mentioned in the aforesaid averment. First that there were serious irregularities noticed in the case of the petitioner, which as stated above being unconnected with the alleged frauds committed by Sami J. Patel would be irrelevant in the context of successful prosecution of the fraud cases. Second, that there is a 'likelihood' that the petitioner's continued presence in the United Kingdom 'may1' prejudicially affect and/or jeopardise the interests of the nationalised Bank in prosecuting the fraud cases in London. In my view, this second aspect which has been mentioned pertains to the domain of the critical possibility, if not speculation. Besides, it has not been clarified as to how and in what manner the petitioner's continued presence is going to affect prejudicially the successful prosecution of the fraud cases against Sami J. Patel in London and no material has been placed on record such as any past or present activity on the part of the petitioner suggesting an inference that the petitioner was favourably inclined towards Sami J. Patel or was interested in helping Sami J. Patel. In the absence of any clue being furnished as to how and in what manner the petitioner's presence is likely to prejudice or jeopardise the interests of the nationalised Bank in prosecuting the fraud cases in London, it would be difficult for the Court to surmise or imagine the ways in which prejudice could occur to the successful prosecution of fraud cases. If what is intended to be conveyed is that he might furnish evidence in the proceedings pending in London Courts and such evidence may adversely affect the successful prosecution of the fraud cases, then certainly the petitioner's detention in this country would rather be contrary to public interests, for such detention would amount to interference with administration of justice and consequently would be undermining general public interests. However, as stated earlier, no material has been placed before the Court as to how and in what manner the petitioner's continued presence in the United Kingdom is likely to jeopardise or prejudicially affect the successful prosecution of the fraud cases in London, that is to say, what kind of activities the petitioner is likely to indulge in if he is allowed to go and stay in the United Kingdom has not been stated anywhere in the affidavit and therefore it is clear to my mind that apprehended consequences are problematic, fanciful and too remote and as such the nexus is unreal. In other words, the material on which the impugned decision was taken by the Central Government was such that no reasonable body of persons could come to the conclusion that it was necessary in the interests of the general public to impound the petitioner's passport.

24. In the above context I would like to place on record one thing that transpired during the hearing. It is clear that the Central Government has impounded the petitioner's passport out of fear entertained by it that the petitioner's presence in U.K. is likely to affect prejudicially the interests of the nationalised Central Bank in prosecuting the fraud cases in London. Though the manner in which such likelihood of prejudice was apprehended Was not specifically mentioned in the affidavit, the petitioner at one stage of the hearing did make an offer to conduct himself in such a manner as to allay completely the apprehension of the Central Government and this was done without prejudice with a view to see that the matter could be amicably settled but the matter could not be settled. Mr. Sorabjee, however, made a statement at the Bar that his client was prepared to give the same assurances A with prejudice in order to show his bona fides. Mr. Sorabjee stated that the petitioner's statement has been recorded in the committal proceedings in London at Guild Hall Magistrate's Court in connection with prosecution against Sami J. Patel, that he was willing to give evidence for the prosecution if called upon to do so and that he has never been approached or sounded to give evidence on behalf of Sami J. Patel; that he is prepared to give an undertaking to the Court that he will not do anything or act in any manner which may prejudice or impair or in any manner directly or indirectly affect the prosecution launched against Sami J. Patel or any other legal proceedings that may be adopted by respondent No. 3 Bank and/or against the Bank in connection with the transactions of the London Branch of respondent No. 3 Bank and will give such assistance as may be in his power to respondent No. 3 Bank if and when called upon to do; and that he will undertake that he will not divulge or disclose any information pertaining to the affairs of respondent No. 3 Bank which he has gathered during the period of his service with respondent No. 3 Bank. Even after the aforesaid assurances and undertakings were offered by Mr. Sorabjee on behalf of his client with prejudice, Mr. Joshi appearing for respondents Nos. 1 and 2 was not in a position to say that respondent No. 1 was prepared to reconsider its impugned decision.

25. Having regard to the aforesaid discussion, I am clearly of the view that the material disclosed in Shri Kazi's supplemental affidavit dated March 4, 1972 on the basis of which the impugned decision was taken has no possible rational connection with the ground of general public interests to serve which the petitioner's passport was impounded; in other words, the material was such that no reasonable body of persons could come to a conclusion that it was necessary in the interests of general public to impound the petitioner's passport. In this view of the matter the impugned decision will have to be quashed. Since the petitioner is entitled to succeed on these two points, it is unnecessary to deal with and I do not propose to deal with the other points on the basis of which the impugned decision has also been challenged.

26. In the result, I feel, that the impugned decision of the Central Government to impound the petitioner's passport taken on June 11, 1971 and which was communicated to the petitioner by respondent No. 2 in his letter dated November 25, 1971 should be quashed.

27. I further direct respondents Nos. 1 and 2 to forbear from taking any further steps or action in furtherance or in implementation of the impugned decision which has been quashed.

28. Rule is, therefore, made absolute in terms of prayer (a) of the petition.

29. Respondents Nos. 1 and 2 to pay the costs of the petition to the petitioner. Costs to be taxed on a Long Cause scale with one counsel allowed on either side.

30. Taxing Master to be at liberty to allow as instructions for brief any sum exceeding Rs. 2,000 as he may in his discretion think proper.

31. Respondent No. 3 to bear its own costs.

32. Operation of the order stayed till Friday, March 24, 1972.


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