Orissa High Court
Abhijit Deb vs Union Of India And Others ..... Opposite ... on 23 May, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.13488 of 2024
Abhijit Deb ..... Petitioner
Mr. S.K. Dalai, Advocate
Vs.
Union of India and others ..... Opposite Parties
Mr. G. Mohanty,
Senior Panel Counsel
CORAM: JUSTICE SANJAY KUMAR MISHRA
ORDER
23.05.2024 Order No. The matter is taken up through hybrid mode.
1.
2. Though the matter was not on board, on being mentioned by the learned Counsel for the Petitioner showing urgency, is taken up by Special Notice.
3. Mr. G. Mohanty, Learned Senior Panel Counsel is present and admits to have received copy of the Writ Petition and submits, he has instruction to represent the Opposite Parties.
4. In view of urgency shown in the Writ Petition so also limited grievance of the Petitioner as detailed in the Writ Petition, the matter is taken up for hearing and disposal at the stage of admission on consent of the learned counsel for the parties.
5. Mr. Dalai, learned Counsel for the Petitioner submits, in the cause title of the Writ Petition, the address of the Opposite Party Nos. 2 and 3 could not be correctly reflected. Accordingly, he orally prays for allowing him to make necessary correction in the cause title of the Writ Petition. He is permitted to do necessary corrections in the Court, to be counter signed by the Court Master.
6. The factual matrix of the case , in short, is that the Petitioner is a classical dancer and obtained Master's Degree in "Odissi Dance" and in due participation in the recruitment process under the Railway Department and from the category of cultural activity, he has been appointed in clerical cadre since 2013. Though he was initially appointed at Bilaspur , at present is working at Bhubaneswar in the Statistical Branch in Rail Sadan, East Coast Railway.
7. It is further case of the Petitioner that during his service period, with due permission of the Appointing Authority, he has been empanelled in the Panel Dancer Group under the Indian Council for Cultural Relation (ICCR) since 2009 and has participated in different programme of Doordarshan and is also an empanelled Teacher under ICCR with due permission of the Authority for the period 2017 to 2021.
8. In view of the aforesaid activities, the Petitioner is used to spread Odissi Dance Culture in and around the country and is trying his best to educate Odissi Dance through online without any profit. For the said reasons, the Petitioner is very popular among the pupils, who are on the way to learn "Odissi" dance. Accordingly, the Petitioner, with due permission of the Authority and in accepting invitation from the pupils residing in different parts of the country and abroad , during leisure time, used to travel to different parts of the country so also abroad to educate and make awareness on Odissi culture.
9. For the said purpose, to make awareness and teaching Odissi dance, the Petitioner has travelled Republic of China and German twice in the year, 2019 and 2023 in accepting invitation from pupils with due permission of the Authorities. For that reasons, the authorities not only granted leave, but also issued "No Objection Certificate" in favour of the Petitioner enabling him to travel abroad.
10. It is further case of the Petitioner that the pupils, who are residing abroad, depending upon their financial condition, used to come to India to learn Odissi from the Petitioner so also some times, in educating themselves through online, they requested the Petitioner to go to their place and to educate them in congregating different learners and also they used to bear expenditure of the Petitioner by way accommodating him in their home by showing their hospitality. The Petitioner, in order to maintain his hubby and to spread Odissi culture, shows his interest to teach Odissi dance without getting any aid from any corner or any profit in the said regard , except accepting the hospitality from the pupils by staying in their home and by taking free food during the aforesaid period.
11. Accordingly, getting invitation from the pupils from China to attend a training camp to educate Odissi, the Petitioner applied for Ex-India Leave before the Opposite Party No.3 indicating all those sequences/ events and thereby, requesting to grant the same benefits, as has been granted in his favour in year, 2019 and 2023.
12. However, the Petitioner received a letter dated 13.05.2024 for clarification on his application with regard to compliance of procedure under the Foreign Contribution (Regulation) Act, 2010, shortly, 'the Act, 2010" and to give the particulars. In response to the said letter, the Petitioner complied all the queries and gave his reply on 16.05.2024 with details, as was sought for, clarifying therein as to inapplicability of FCRA, 2010 and Rules, 2011.
13. When the matter stood thus and the Petitioner was expecting for consideration of his case with a hope that the Authority will grant Ex-India Leave for the period from 06.06.2024 to 27.06.2024, the Authority concerned, vide communicated dated 20.05.2024, rejected the prayer of the Petitioner for the time being on the plea that without following FCRA-2010 and FCRR-2011 and all the guidelines of appropriate Ministries, his leave application cannot be considered. Hence, he was being compelled to approach this Court by preferring the present Writ Petition.
14. It is further case of the Petitioner that he has also booked flight ticket and already received Visa from the Emrassy of People's Republic of China , Kolkota and there is no restriction either to travel or to get hospitality from foreign source. Rather, it has been formulated to regulate the acceptance of hospitality and to prevent anti nation activities in case of crossing the limit. The Petitioner has never exceeded permissible limit. Rather, he has done everything within the knowledge of the concerned Authority and strictly within statutory provisions / regulations.
15. It is the further case of the Petitioner that as in the meantime, time is running out, the Petitioner wrote a letter to the FCRA Authorities for clarification of the same and the clarification desk has clarified through e-mail that there is no such hindrance to issue "No Objection Certificate" in favour of the Petitioner by the Authority concerned to visit Republic of China. Hence, in the meantime, the Petitioner has finalized his programme in connection with subsequent events in China and if the programme will be disrupted /interrupted, consequential result will be harsh. The Petitioner purchased Air tickets enabling him to travel in terms of the programme, which has already been finalized by the Authority of Republic of China.
16. The further case of the Petitioner is that in terms of the provisions of law, which has been amended, there is no bar for such visit and acceptance of hospitality and in this connection, the Authority has already granted permission to visit the said country twice in the past. Therefore, there should not be any hindrance for issuance of clearance and being remediless and having no other alternative and efficacious remedy, he is being compelled to approach this Court by invoking the writ jurisdiction.
17. In view of the facts detailed above, the Petitioner approached the Authority on 21.05.2024 with a detailed representation for consideration of his case at the earliest, looking into the time factor.
18. Heard learned Counsel for the Petitioner so also Mr. Mohanty, learned Senior Panel Counsel for the Union of India as well as Railway.
19. Mr. Dalai, learned Counsel for the Petitioner, drawing attention of this Court to the communication dated 13.05.2024 made by the Opposite Party No.3, as at Annexure-10, so also response of his client dated 16.05.2024, as at Annexure-11, submits, despite such clarification given by the Petitioner, the Opposite Party No.3 ,vide the impugned order dated 20.05.2024, turned down the request of the Petitioner for Ex-India Leave allegedly without following FCRA, 2010 and FCRR, 2011 and all extant guidelines of the appropriate Ministries, as applicable, in the said regard. However, vide the said communication, the Petitioner was advised to submit details of expenditure incurred in the past for four visits to abroad, including details of cost of traveling, boarding, lodging, transport, visa, miscellaneous expenses and medical expenses incurred, if any, during his stay abroad along with all supporting documents.
20. The contents of the said communication dated 20.05.2024 are extracted below for ready reference.
" EAST COAST RAILWAY Statistical Branch, RailSadan, Ground Floor, North block, C.S.Pur, Bhubaneswar-17.
No.ECoR/Stat/Staff/AD/Ex-India leave/2024/419 Dt. 20.05.2024 To, Sri Abhijit Deb, OS/ Statistics East Coast Railway, Bhubaneswar Sub:- Ex-India leave by Sri Abhijit Deb, OS of Statistical Branch/ECoR.
Ref:- 1. Your Ex-India Leave Application No. Nil, Dt.06.5.2024
2. This office letter seeking Clarification on Application for Ex-India Leave Vide lt. no. ECOR/Stat/Staff/AD/Ex-India leave/2024/404 dated 13.05.2024
3. Your representation No. Nil dated 16.05.2024 As indicated in your application dated 06.05.2024, you are planning to avail foreign hospitality in the form of sponsorship of all your expenditure by your friend staying in China, including your expenditure towards travel, boarding, lodging, visa, misc. etc to the tune of Rs.95,0O0/- (Rupees ninety five thousand only). In this regard, a clarification was sought from you, vide this office letter under reference (2) and the reply as received from you, in your representation dated 16.05.2024 is not found satisfactory.
As such, your request for Ex-India leave cannot be considered at this stage, without following FCRA, 2010, FCRR, 2011 and all extant guidelines of appropriate Ministries, as applicable, in this regard.
Further, you may submit the details of your expenses incurred in your recent past four visits abroad (as mentioned in the enclosed proforma to your application dated 06.05.2024), including details of cost of travel, boarding, lodging, transport, visa, miscellaneous expenses (and medical expenses incurred, if any) etc. during your stay abroad along with all supporting documents/documentary proofs etc within 15 (fifteen) days of receipt of receipt of this letter.
Sd/-
(Swarai Pradhan, IRTS) Data Analytical Officer"
21. Mr Dalai further submits, though the scheduled date of travel will commence on 06.06.2024, vide the impugned communication dated 20.05.2024, intentionally it has been mentioned therein that the said details are to be furnished to the Opposite Party No.3 within fifteen days of receipt of such communication. However, without waiting for the time granted, because of the urgency, the Petitioner submitted his response in detail on the very next day i.e. 21.05.2024, and gave his response to the said communication dated 20.05.2024, indicating there in other information, as required, and revised proposal for taking prior permission for visiting abroad. That apart, details of expenses incurred for his previous visit to China and Germany was also submitted before the Authority. Since 21.05.2024, the Opposite Party No.3 is sitting over the matter and the Petitioner is yet to be communicated about the outcome of such revised proposal/permission submitted by him as was asked vide communication dated 20.05.2024.
22. Mr. Dalai further submits that as per the revised application, the Petitioner has disclosed that he is going to bear the entire tour expenditure and there should not be any bar, as disclosed in his application, in terms of the Foreign Contribution (Regulation) Act, 2010 so also Rules, 2011, as has been pointed out by the concerned Authority.
23. In view of the urgency shown by the Petitioner, who has already booked his flight ticket to travel to Republic of China and has also obtained visa in intimation of granting Ex-India Leave of the concerned Authority, the Writ Petition stands disposed of directing the Opposite Party No.3 to immediately act in terms of the fresh application submitted by the Petitioner dated 21.05.2024 for his Ex-India Leave Rules, to avail leave for fifteen days, including Saturdays, Sundays and holidays, as has been applied , within three days from the date of production of certified copy of this order and outcome of the said consideration should be made known to the Petitioner within three days of receipt of the certified copy of this order.
24. This Court is hopeful that the Authority concerned shall do well to consider the application of the Petitioner for leave keeping in mind that leave was granted in his favour twice in the year 2019 and again twice in the year 2023 to visit Germane and Republic of China for awareness and promotion of Odissi dance culture, which the Petitioner is doing without any profit and is going to bear the entire tour expenditure of his own and FCRA, 2010 may not be applicable to his case.
25. Urgent certified copy of this order be granted as per rules.
padma (S.K. MISHRA)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: PADMA CHARAN DASH
Designation: Personal Assistant
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 24-May-2024 15:10:17