United Travel Service v. UOI

ORDER 2t.I0.2010 WP (Civil) 6918/2010 & CM APPLs L3911/2010. 13912/2010 WP (Civil) 6919/2010 & CM APPLs 13900/2010. 13899/2010 WP (CiviD 6920/2010 & CM APPLs 13901/2010. 13902/2010

¶1These tluee petitions are by Private Tour Operators (PTOs) registered as such with the Ministry of External Affairs (MEA), Govermnent of India for the Haj Pilgrirnages during the years previous to 2010. Each of thern had been issued notices asking for their explanation in regard to complaints received against them in connection with the Haj Pilgrimage 2009. The Petitioners replied to the notices but did not hear thereafter from the MEA. In fact, the security deposited for Haj pilgrirnage-2009 was rehrrned and applications made by each of thern for Haj pilgrimage-20l0 were accepted. They learnt that their narnes figured in the list of 615 PTOs ftirnished by the MEA to the Supreme Court when it passed an order on 21" September 2010 upholding the Haj Policy for 2010. According to the Petitioners the Suprerne Court was infonned by the MEA that the quota for the Haj Pilgrirnage 2010 had already been distributed among the said 615 PTOs. However, none of the Petitioners was in fact allotted any quota for the Haj 2010.

¶2Apprehending that they may have been blacklisted, although no such order was comtnunicated to thern till then, the Petitioners filed these petitions on 7th October 20L0 seeking a stay of the blacklisting process or the blacklisting order if any passecl and for a mandamus to the MEA to allot thern quotas for the Haj 2010

¶3At the hearing on 8il'October 2C10, one of the WP (Ci'til) Nos.6978, 6979 & 6920/2070 points urged by Ms.Nilofar Pdge 2 ol 70 Quereshi, learned coursel for the Petitioners was thaf none of them was communicated any order by the MEA purportedly blacklisting thern. It was insisted that their names figrrred in the list of 615 PTOs handed over to the Supreme Court at the hearing on 2l't September 2010 and that the Suprerne Court was infonned that the quota for Haj 2010 was being distributed among thern. Countering this, it was stated by lvft.Rajesh Katyal, the learned counsel for the MEA who appeared on 8fl' October 2010 on advance notice, tlrat at the hearing on 21't September 2070, a separate list of 13 PTOs had been shown to the Supreme Court and the MEA had infonned the Supreme Court that those 13 PTOs, which included the three petitioners, had been dropped. IW. Katyal added that the nalnes had been dropped on the orders of the competent authority on complaints received against the petitioners about transfer of pilgrirns from one PTO to another and sorne other factors. Since tlre order dated 21't Septernber 2010 of the Supreme Court did not record any such production of a list of 13'PTOs by the MEA, this Court wanted to know if by then orders had been passed blacklisting the Petitioners and whether such orders had been communicated to each of the petitioners. Counsel for flre MEA sought tirne to seek instnrctions on this aspect and the case was adjourned to today.

¶4Thereafter it appears that on 130' October 2010 each of the Petitioners received by Speed Post identical orders dated 5th October 2010 informing them that they have been "dropped from the list of registered'PTOs for Haj 2010." These orders were dispatched on 12h October 2010 and received by each of them on 13n' October 2010. Each of the Petitioners has filed separate applications seeking the quashing of the said blacklisting orders WP (civil) Nos.6918, 6979 & 6920/2070 subsequently communicated and seeking in the meanwhile for the stay of those orders. An additional affidavit has also been filed by each petitioner to place on record the list of PTOs to whom quotas were distributed for the Haj Pilgrirnage 2009, which list included the narnes of the Petitioners. It is reiterated that since the same list was to operate for Haj 2070, which policy was accepted by the Sripreme Court, the decision to blacklist the Petitioners after u'as in any event wholly arbitrary and unjustified.

¶5t\4r. Ravi Gupta, learned Senior connsel for the Petitioneis, while reiterating the subuissions made before, pointed out that the blac'klisting letter was dispatched only on l2n'October 2010 four days after the previous hearing of the petitions. In the letter sent to ilfls. Alif Travels P\rt. Ltd.

(ATPL) the Petitioner in W.P. (C) No. 6918 of 2010 the date has been originally typed as 29ft Jnne 2010. Thereafter the words "29ft June" has been scored out and'cc5th grr" written beneath it by hand. It is subrnitted that the show cause notice issued to ATPL was also on 29il'June 2010. According to the Petitioners this sho.ared that the decision to blacklist ATPL and the othcr two Petitioners was a pre-determined one. It is ftirther subrnitted that none of the orders dated 5il' October 2010 give reasons why ihe Petitioners were being blacklisted.

¶6Appearing for the MEA, I\{k. Rajesh Katyal, learned counsel initially subrnitted that he was not aware if the Petitioners had been blacklisted but refened to the order dated 21" September 2010 of the Supreme Court and stated that the entire quota for the Haj 2010 stood distibuted. He u'as however unable to show any record regarding the list of 13 PTOs 'WP (Civil) Nos.6978, 6979 & 6920/2070 purportedly shown to the Supreme Court, which included the names of the Petitioners.

¶7This Colrt finds ol1 a penrsal of the order dated 21" Septentber 2crl0 passed by Suprerne Court in Special Leave Petition (Civil) No. 27032 of 2010 (Government of India v. Al Ameen Hai Group & Ors) that.it malies. no rnention of such list of 13 PTOs, rvho were dropped'for the l{aj 2010, being shown to the Supreme Court. Clause I of the operative directions isslecl by tlre Suprelne Court records that the PTOs who already stand - identified are apprcxirnately 615 "and they have been selected by the Govt. . of India and specified numbers of pilgrirns are also being clishitruted arnongst thern giving them a specific ntunber." Clearly theretbre ai this stage the three petitioners, lvho were in the list of 615 PTOs, were in the reckoning for being allotted a quota each for the Haj Pilgrirnage 2010.

¶8Secondly, the letters blackliSting the Petitioners are each rJatecl 5u'October. "' '. 2010. This puts paid to the conlention of the MEA th.at even as on 21't' Septernber 2010 they r,vere clropped from the list of PTOs. It rnust be adclecl that the original one of the letters dated 5th October 2010 addressed to AiPL (the date on rvhich has been corrected from 29ft June to 5ft October) as well the original of the cover in r,vhich it was dispatchecl by Speed Post ''r'as shown to Mr. A.M. I(han, Achln. Offic.er (I{aj) MEA, who was present in Court. Ile contirmed that the signdture on tlie letter ',rras cf the lJncler Secletary to the Governrnent of India and that it had indeed been dispatched on 12t" October 2010. Therefore prior to being deprived of the quota for Haj 2010, the three Petitioners we.re not comnunicated any order of blacklisting WP (Civil) Nos.5978,5919'& 6920/20i0 't i, . " , Poge 5 of 70

¶9Learned counsel for the MEA sought to argre that, in keeping with the normal practice the names of those PTOs who had been allotted pilgrims for Haj 2010 was on the MEA's website. Those PTOs whose names did not find place in the said list would autornatically presume that they have been blacklisted. Therefore, there was no need to separately commnnicate a blacklisting order to each such PTO.

¶10Both as a factual and legal proposition, this submission is nntenable. No PTO is possibly going to 'presume' that it has been blacklisted unless an order to that effect is cornmunicated to snch PTO. A blacklisting order has adverse civil consequences affecting the reputation of the entity blacklisted. It has to be only by a written order giving the reasons for such blacklisting. The procedure in arriving at snch decision has to be in compliance with the principles of natural justice. The order containing the reasons has to be communicated to the affected PTO. Any deviation from any of these legal irnperatives r,vill render the order vulnerable to invalidation.

¶11Factually, the MEA itself has considered it necessary to comrnunicate, albeit after the petitions were heard by this corrt, the blacklisting orders to the petitioners. The MEA has not proceeded on the footing that the petitioners should already have known of such blacklisting. With there being nothing to show that there was any list of 13 PTOs shown to the Supreme Court which included the Petitioners, the inescapable conclusion is that no blacklisting order against each of them was passed prior lo tu' October 2010 and factually no such order was communicated till 13tl' October 2010. The WP (Civil) Nos.6978,6919 & 6920/2010 L0 Petitioners were part of the list of the PTOs who had quotas for Haj 2009 and in keeping with the policy for 2010 were in line for allotrnents for Haj 2010. Therefore, the decision to drop the Petitioners from the list of PTOs to whom quotas for the Haj 2010 were to be distributed, even before any blacklisting order was passed, much less communicated to each of them, was a pre-detennined one which cannot be said to be either just or reasonable.

¶12Turning to the blacklisting orders dated 5d' October 2010, they simply state that the explanation offered by each Petitioner to the notice issued by the MEA based on the cornplaints received against thern was not found satisfactory and therefore they rvere being dropped from the list of PTOs for the Haj 2010. It rnust be recalled at this stage that as regards the Petitioners in Writ Petition (Civil) Nos. 6918 of 2010 &. 6920 of 2010, the allegation against them was that they had ffansferred their pilgrims to IWs. Labbaik Tous & Travels, the Petitioner in Writ Petition (Civil) 6919 of 2010 and that this was irnperrnissible and violative of the tenns and conditions upon which allotrnents had been made to them for Haj 2009. All tluee Petitioners replied to the notices denying such allegation. \zlls. Labbaik Tours & Travels denied having any corutection with other two Petitioners.

¶13The commrmication dated 5il' October 2010 frorn the MEA to Petitioner ATPL reads as nnder: "No. WHaj I 1183 130 12010 To The Proprietor, NIrs. Alif Travels Pvt. Ltd. 101, Akash Deep, 26, Barkhamba Road New Delhi - I 10 001. WP (civil) Nos. 6978, 6919 & 6220/2qu the 5n'oct 2o1o lt I Subject: Complaints received from pilgrims regarding deficiency of services during Haj -2009. Sir, Reference orlr previons correspondence on the above mentioned subject. The undersigned is directed to inform you that clarification given by you on the cornplaints received against your company was considered by the competent authorities in the Ministry and was not found satisfactory. Therefore, your company has been dropped from the list of registered PTOs for Haj-2010. Yonrs faithftrlly, sd/- Under Secretary to the Govt. of India"

¶14The letters to the other two Petitioners is identically worded and dated 5m October 2010. That the file number does not correspond with the nurnber in the (show cause) notice issued to ATPL is not of much significance. As regards the letter sent to ATPL, the scoring out of the originally typed date of 29il' June and its substitution by ink with "5th Oct" does create solne suspicion, although in the other two cases the date is typed as 5tr' October. Nevertheless, what is sigrrificant is that in each of three communications dated 5th October 20L0, no reasons for the blacklisting are given. There is nothing to indicate why the explanation offered by each of the Petitioners was not found satisfactory. The sentence that the explanation of the Petitioners is not "satisfactory" is the MEA's conclusion, and not the reasons. The letters hardly satis$r the requirement of an order, having adverse civil consequences for the person against whom it is rnade, having to WP (Civil) Nos.6978, 6979 &"6920/2070 ._, . aF [r-reflect the rnind of the decision maker. In this connection, it would be useful to recall tlre observations of this Court rn Mekaster Truding Corp. v. Urtiort of India 106 (2003) DLT 573 where this Court quashed the blacklisting order by observing that "passing the order in such a slip shod rnanner which has the serious effect of blacklisting the petitioner for a long period of 5 years is certainly not an act of good administration". It observed that "the. aforesaid sumrnation cannot be called as 'reasons' in supporf of the order. It can, at best, be tenned as conclusion. Apart from this conclusion there is nothing in the order to indicate any supportive reason". This Court pointed out that the link between the material on which conclusions a.re based and flre actual conclusion had to be found. "If that has remained at the back of the rnind of the authority passing the order, and has not surfaced on the records of the case, the ingredients of a reasoned order are not met". Further it was ernphasized that the reasons for arriving at the conclusions "should be discernible from the order itself. It is trite law that when authority has ormtted to give reasons in the irnpugned order such a deficiency cannot be supplied by the State by adducing sufficient ground therefor when the validity of the order is challenged".

¶15Having being issued a prior notice and having received a reply in response thereto, it was incumbent upon the Respondent to pass individual reasoned orders in each case giving the reasons r.vhy such PTO was being blacklisted. On the other hand the impugned orders are inscnttable for their reasons. They have been passed in a mechanical way giving the reader no occasion to discern the reasons for the conclusion. This is yet another reason vvhy the irnpugned blacklisting orders cannot be sustained in law. WP (civil) Nos. 6978, 6979 & 6920/2070 t9

¶16Accordingly each of the orders dated 5il' October 2010 passed by the MEA dropping each of the Petitioners from the list of PTOs for Haj 2010 is h.r.by set asicle.

¶17An earnest plea was made by Mr. Gupta, learned Senior counsel for the Petitioners that a consequential'order rnust be passed directing the MEA to withdraw the excess quota of pilgrims allotted to the Haj Committee and re-distribute them among the Petitioners. With the Haj 2010 already underway and bookings of pilgrirns having already been rnade, it will not be possible for this Court to issue any such mandamus of that nahtre. For any loss suffered by the Petitioners on account of the impugrled blacklisting orders, which have been set aside by . this order, they can avail of appropriate remedies available to thern in accordance with law. It is nevertheless clarified that this order will not preclude the Petitioners from making representations to the MEA to consider them for allotrnent of pilgrims, if any remain to be allotted, even for Haj 2010. Such representation when made will be considered by the MEA on rnerits and in accordance with law.

¶18The r,vrit petitions are allowed in the above terrns. The pending applications are disposed of.

S. MURALIDHAR, J. ocroBER 21, 2010 rk WP (Civil) Nos.6978, 6979 & 6920/2070 Poge 70 of 70

t= tr JO + IN THE HIGH COURT OF DELHI AT NEW DELHI w.P.(c) 69L8120r0 ALIF TRAVELS PVT LTD ..... Petitioner Through Mr. Ravi Gupta, Senior Advocate with Ms. Nilofar Quereshi, Mr. Khushi Mohd, Advocates VCTSLIS UNION OF INDIA ..... Respondent Through Mr. Rajesh Katyal with Mr. Ashok Singh, Advocate along with Mr. A.M. Khan, Adrnn. Officer (Haj), MoEA, Govt. of India. with w.P.(c) 69r9i20r0 LABBAIK TOURS & TRAVELS ..... Petitioner Tlrough Mr. Ravj Gupta, Senior Advocate with Ms. Nilofar Quereshi, Mr. Khushi Mohd, Advocates VETSUS UNION OF INDIA ..... Respondent Tluough Mr. Rajesh Katyal with i\{r. Ashok Singh, Advocate along rvith Mr. A.M. Khan, Adrnn. Officer (Haj), MoEA, Govt. of India. And w.P.(c) 6e20120r0 UMTED TRAVEL SERVICE ..... Petitioner Through Mr. Ravi Gupta, Senior Advocate with Ms. Nilofar Quereshi, Mr. Krushi Mohd, Advocates versus TTNION OF INDIA ..... Respondent Through Mr. Rajesh Katyal with Ml. Ashok Singh, Advocate along with \4r. A.M. Khan, Adrnn. Officer (Haj), MoEA, Govt. of India. a4 JI wP (Civil) Nos. 6918, 6979 & 6920/2070 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. \ CORAM: JUSTICE S. MURALIDHAR