Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN SATURDAY, THE 30TH DAY OF SEPTEMBER 2023 / 8TH ASWINA, 1945 WP(C) NO. 22973 OF 2023 PETITIONER: THOMAS MATHEW, AGED 55 YEARS, S/O. T.M. MATHEW, A-2301, GOLD SUMMIT, GUBBI CROSS, KOTHANUR, NENNUR ROAD, BANGALORE, KARNATAKA, PIN - 560077 BY ADVS. P.A.MOHAMMED SHAH SHAHIR SHOWKATH ALI RENOY VINCENT CHELSON CHEMBARATHY MUHAMED JUNAID V. THOUFEEK.R. ABEE SHEJIRIK FASLA N.K SHILU SEBASTIAN ADITH KRISHNAN.U. FATHIMA AFEEDA P. RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF CIVIL AVIATION, RAJIV GANDHI BHAWAN BLOCK B, JORBAGH SAFDARJUNG AIRPORT AREA, NEW DELHI, PIN - 110003 2 DIRECTOR GENERAL, BUREAU OF CIVIL AVIATION SECURITY, 'A' WING, JANPATH BHAWAN, JANPATH, NEW DELHI, PIN - 110001 3 REGIONAL DIRECTOR, BUREAU OF CIVIL AVIATION SECURITY, REGIONAL OFFICE, ERNAKULAM, PIN - 683111 4 INDIAN AIR FORCE AIR HEADQUARTERS (VAYU BHAWAN), MOTILAL NEHRU MARG, NEW DELHI - 110106 REPRESENTED BY ITS WING COMMANDER BY ADVS. S.MANU MINI GOPINATH - CGC . SUVIN R MENON :2:
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :3:
DEVAN RAMACHANDRAN, J.
========================= ========================== Dated this the 30th day of September, 2023
JUDGMENT
The petitioner impugns Ext.P15 order of the Regional Director, Bureau of Civil Aviation Security, Cochin, on the specific ground that the reasons cited therein - to deny him Airport Entry Pass (AEP) - are untenable and contrary to the statutory scheme, as available in Ext.P2 “AEP Guidelines”.
2. Sri.P.A.Mohammed Shah - learned counsel for the
petitioner, vehemently argued that Ext.P2 would render it manifest that issuance/renewal of an “AEP” shall not be withheld/denied for “reasons other than security”. He submitted that, therefore, even assuming that his client has been chargesheeted for offences as are mentioned in Ext.P15, it would cause no threat to security in any manner whatsoever, because the charges against him are only with respect to certain events that happened in his official capacity, while he was working in a private company. He submitted that, when none of the offences charged against him can ever be construed to be a threat to security, the Regional Director could not have issued :4: Ext.P15. He thus prayed that same be set aside and said Authority be directed to issue to his client an “AEP”, within a time frame to be fixed by this Court.
3. In response, Smt.Mini Gopinath - learned Central
Government Counsel, submitted that a statement has been filed by her, wherein, it has been averred that the petitioner, or his employer Company, did not inform the Bureau of Civil Aviation Security (BCAS), about the FIR registered against him; and that this is in violation of Clause 10.4(iii) of the “AEP Guidelines”. She, however, conceded that the petitioner has disclosed this in the application dated 26.09.2022, but explained that since he has already been chargesheeted by the Central Bureau of Investigation under the various penal provisions, the application for an “AEP” cannot be considered. She, concluded her submissions saying that, in fact, the petitioner's case had been re-examined, as directed by this Court; but was found that there has been no change in its status since in his last application filed for “AEP”, he continues to be chargesheeted for various offences under the Indian Penal Code (IPC) and the Prevention of Corruption Act. She then predicated that, since the charges against the petitioner have reflection on his past service in the :5: Indian Air Force and since the matter is still sub judice, it was correctly decided not to give him an “AEP” at this time. She thus prayed that this writ petition be dismissed.
4. I have examined the afore rival submissions, on the touchstone of various materials on record.
5. Normally, an application for “AEP” can be rejected only
for specified reasons and governed by Ext.P2 Guidelines. As correctly argued by Sri.P.A.Mohammed Shah, one of the mandatory requirements in the said Guidelines is that such an application will not be rejected, except for reasons of security.
6. Obviously, therefore, while issuing an order like Ext.P15,
the Regional Director ought to have also verified whether the charges against the petitioner and, the factum of the case having been registered against him under the various provisions mentioned therein, would pose a threat to security; or whether the petitioner, on account of allegations of his antecedent behaviour, would cause such a threat, were matters that ought to have been decided appropriately. This certainly require an assessment of all relevant aspects - including factual and documentary; but I do not find any such in Ext.P15.
7. Indubitably, therefore, Ext.P15 cannot find my favour,
particularly because it is stated to have been issued in terms of :6: the directions of this Court. In the afore circumstances, I allow this writ petition and set aside Ext.P15; with a consequential direction to the Regional Director of BCAS, Cochin, to reconsider the petitioner's application, adverting to my observations above, and with specific reference to Ext.P2 Guidelines, after affording him an opportunity of being heard; thus culminating in an appropriate fresh order, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. After I dictated this part of the judgment, Smt.Mini Gopinath - learned Central Government Counsel, intervened to say that Clause 11.9.2 of Ext.P2 Guidelines also mandate that persons who are alleged to have been imputed with serious offences like burglary fencing of stolen goods, embezzlement, fraud and fraudulent misrepresentations, without restitution cannot also be considered for grant of “AEP”. She submitted that this may also be allowed to be kept in mind by the Regional Director. Though I do not propose to speak on the afore contention on its merits, it is evident even from the afore assertion itself that when certain specified offences have been enumerated, the :7: charging of which will dis-entitle a person from obtaining an AEP, it certainly has to be assessed if the imputations against him would fall into these categories. Obviously, this will also have to be decided by the Regional Director, for which purpose, the afore directions become more imperative. I, therefore, direct the said Authority to consider these aspects in its proper perspective, while the afore directions are complied with. Th afore shall be done by the Regional Director, also adverting to the counter affidavit filed before this Court by the Air Force; for which purpose, the petitioner will make available the same, along with a certified copy of this judgment and a full set of the writ petition before the said Authority; and the time frame above fixed, will start from the date on which it is so done. This writ petition is thus ordered. Sd/- DEVAN RAMACHANDRAN JUDGE anm :8: APPENDIX OF WP(C) 22973/2023 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE AIRPORT ENTRY PERMIT NO. KEL0021412 ISSUED BY THE RESPONDENT NO.2 Exhibit P2 THE TRUE COPY OF THE AIRPORT ENTRY PERMIT
GUIDELINES 2022 ISSUED BY MINISTRY OF
CIVIL AVIATION Exhibit P3 THE TRUE COPY OF THE 2ND SUPPLEMENTARY CHARGE-SHEET BY CENTRAL BUREAU OF INVESTIGATION, NEW DELHI ('CBI') ON 15.03.2022 Exhibit P4 THE TRUE COPY OF ORDER DATED 30.07.2022 PASSED BY THE TRIAL COURT
Exhibit P5 THE TRUE COPY OF THE SUMMONING ORDER
DATED 18.07.2022 Exhibit P6 THE TRUE COPY OF THE ORDER IN WRIT PETITION (CRIMINAL) NO. 2220/2022 DATED 20.09.2022 Exhibit P7 THE TRUE COPY OF THE ORDER IN WRIT PETITION (CRIMINAL) NO. 2220/2022 DATED 16.01.2023 Exhibit P8 THE TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT NO.3 DATED 02.11.2022 Exhibit P9 THE TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT NO.1 DATED 27.12.2022 Exhibit P10 THE TRUE COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT NO.3 IN WRIT PETITION (CIVIL) NO.646/2023 BEFORE THE HON'BLE
HIGH COURT OF DELHI
Exhibit P11 THE TRUE COPY OF THE ORDER PASSED IN WRIT PETITION (CIVIL) NO.646/2023 DATED 19.04.2023 Exhibit P12 THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.3 DATED 22.05.2023 Exhibit P13 THE TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WRIT PETITION (CIVIL) NO.17923/2023 DATED 02.06.2023 Exhibit P14 THE TRUE COPY OF THE WRITTEN SUBMISSIONS SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.3 DATED 16.06.2023 Exhibit P15 THE TRUE COPY OF THE ORDER PASSED BY THE RESPONDENT NO.3 DATED 05.07.2023 Exhibit P16 THE TRUE COPY OF THE LETTER ISSUED TO THE PETITIONER BY KALYAN JEWELLERS DATED 16.01.2023 :9: Exhibit P17 THE TRUE COPY OF THE RTI APPLICATION SUBMITTED BY AIR COMMODORE SANJAY A KUNTE (RETD.) DATED 04.07.2023 Exhibit P18 THE TRUE COPY OF THE REPLY TO THE RTI APPLICATION SUBMITTED BY AIR COMMODORE SANJAY A KUNTE (RETD.) DATED 05.07.2023