Uttarakhand High Court
Poonam Chaudhary vs Union Of India And Others on 26 March, 2018
Author: Rajiv Sharma
Bench: Rajiv Sharma, Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 714 of 2018
Poonam Chaudhary .......Petitioner
Versus
Union of India & others ....... Respondents
Mr. B.C. Pande, Senior Advocate assisted by Mr. Gopal K. Verma, Advocate for the petitioner.
Mr. Virendra Kaparwan, Standing Counsel for the Union of India/respondent nos.1 to 4.
Dated: 26th March 2018.
Hon'ble Rajiv Sharma, J.
Hon'ble Lok Pal Singh, J.
Heard.
2. Petitioner is aggrieved by the revocation of passport on 23.01.2017 (Annexure No.1) at the behest of respondent no.4.
3. Petitioner has not been heard before the passport was revoked on 23.01.2017. There is violation of principles of natural justice. There is also arbitrariness in the decision of the respondent-Union of India whereby the validly issued passport has been revoked/ cancelled. Their Lordships of the Hon'ble Supreme Court in AIR 1978 SC 597, in the case of "Maneka Gandhi vs. Union of India & another", have held as under:-
"57. The question immediately arises : does the procedure prescribed by the Passports Act, 1967 for impounding a passport meet the test of this requirement ? Is it 'right or fair or just' ? The argument of the petitioner was that it is not, because it provides for impounding of a passport without affording reasonable opportunity to the holder of the passport to be heard in defence. To impound the passport of a person, said the petitioner, is a serious matter, since it prevents him from exercising his constitutional right to go abroad and such a drastic consequence cannot in fairness be visited without observing the principle of audi alterant partem. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21. Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question. If the statute makes itself clear on this point, then no more question arises. But even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Bytes, J., in Cooper v. Wandsworth Board of Works [1863] 14C B.N.S. 180. "A long course of decisions, beginning with Dr. Bentley's case and ending with some very recent cases, 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 off the legislature". The principle of audi alterant partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural 2 justice are manifested, namely, Nemo Judex in Sua Causa and audi alterant partem. We are not concerned here with the former, since there is no case of bias urged here. The question is only in regard to the right of hearing which involves the audi alterant partem rule. Can it be imported in the procedure for impounding a passport?
58. We may commence the discussion of this question with a few general observations to emphasise the increasing importance of natural justice in the field of administrative law. Natural justice is a great humanising principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris of Borth-y-Gest spoke of this rule in eloquent terms in his address before the Bentham Club:
We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying these principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But I affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic" conception ? I believe it does. Is it just a rhetorical but vague phrase which can be employed, when needed, to give a gloss of assurance ? I believe that it is very much more. If it can be summarised as being fair play in action- who could wish that it would ever be out of action ? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled; it lacks more exalted inspiration. (Current Legal Problems, 1973, Vol. 26, p. 16) And then again, in his speech in the House of Lords in Wiseman v. Borneman [1971] A.C. 297, the learned Law Lord said in words of inspired felicity:
"that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in "any particular situation or set of circumstance's, are right and just and fair. Natural justice, it has Been said* is only "fair play in action." Nor do we wait for directions from Parliament. The common law has abundant riches there we may find what Byles, J.,' called "the justice of the common law."
Thus, the soul of natural justice is 'fair play in action' and that is why it has received the widest recognition, throughout the democratic world; In the United States, the right to an administrative hearing is regarded as essential requirement of fundamental fairness. And in England too it has been held that 'fair play in action' demands that before any prejudicial or adverse action is taken against a person, he must be given an opportunity to be heard. The rule was stated by Lord Denning, M.R. in these terms in Schmidt v. Secretary of State for Home Affairs [1969] 2 Chancery Division 149 :-where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf". The same rule also prevails in other Commonwealth countries like Canada, Australia and New Zealand. It has even gained access to the United Nations. Vide American Journal of International Law, Vol. 67, page 479. Magarry, J., describes natural" justice "as a distillate of due process of law". Vide Fontaine v. Chesterton (1968) 112 S G
690. It is the quintessence of the process of justice inspired and guided by fair play in action'. If we look at the speeches of the various law Lords in Wiseman's case, it will be seen that each one of them asked the question "whether in the particular circumstances of the case, the Tribunal acted unfairly so that it could be said that their procedure did not match with what justice demanded", or, was the procedure adopted by the Tribunal 'in all the circumstances unfair' ? The test adopted by every law Lord was whether the procedure followed was "fair in all the circumstances"
3and 'fair play in action' required that an opportunity should be given to the tax payer "to see and reply to the counter-statement of the Commissioners" before reaching the conclusion that "there is a prima facie case against him." The inquiry must, therefore, always be : does fairness in action demand that an opportunity to be "heard should be given to the person affected ?
62. Now, here, the power conferred on the Passport Authority is to impound a passport and the consequence of impounding a passport would be to impair the constitutional right of the holder of the passport to go abroad during the time that the passport is impounded. Moreover, a passport can be impounded by the Passport Authority only on certain specified grounds set out in Sub-section (3) of Section 10 and the Passport Authority would have to apply its mind to the facts and circumstances of a given case and decide whether any of the specified grounds exists which would justify impounding of the passport. The Passport Authority is also required by Sub-section (5) of Section 10 to record in writing a brief statement of the reasons for making an order impounding a passport and, save in certain exceptional situations, the Passport Authority is obliged to furnish a copy of the statement of reasons to the holder of the passport. Where the Passport Authority which has impounded a passport is other than the Central Government, a right of appeal against the order impounding the passport is given by Section 11, and in the appeal, the validity of the reasons given by the Passport Authority for impounding the passport can be canvassed before the Appellate Authority. It is clear on a consideration of these circumstances that the test laid down in the decisions of this Court for distinguishing between a quasi-judicial power and an administrative power is satisfied and the power conferred on the Passport Authority to impound a passport is quasi-judicial power. The rules of natural justice would, in the circumstances, be applicable in the exercise of the power of impounding a passport even on the orthodox view which prevailed prior to A. K. Kraipak's case. The same result must follow in view of the decision in A. K. Kraipak's case, even if the power to impound a passport were regarded as administrative in character, because it seriously interferes with the constitutional right of the holder of the passport to go abroad and entails adverse civil consequences.
4. Accordingly, the writ petition is allowed.
Annexure No.1 dated 23.01.2017, passed by respondent no.4 is quashed and set-aside. The respondent-Union of India is also directed to restore the passport of the petitioner.
5. Pending application, if any, also stands disposed of accordingly.
(Lok Pal Singh, J.) (Rajiv Sharma, J.)
26.03.2018
Nishant