[S.10 Emigration Act] Non-Payment Of Salary By Employer Can't Be Given Colour Of Running Illegal Recruiting Agency : Karnataka High Court

The Karnataka High Court has said an employee recruited by a company outside India, if not paid salaries, cannot raise a belated complaint against its Director of running a recruiting agency without a valid certificate under Section 10 of the Emigration Act.

A single judge bench of Justice M Nagaprasanna dismissed the petition filed by one Raman Sundaresan, questioning the internal communication between Joint Secretary to the Protector General of Emigrants and Director General of Police, stating that the complaint made by him is beyond the purview of Section 10 of the Act

The bench said, “There is no mandate under Section 10, that non-payment of salary, as is alleged by the petitioner, can also be its ingredient.”

The petitioner was employed by one Kamdhenu Ventures Cambodia Limited. On account of the Company not giving timely salaries he had tendered his resignation in 2014. The petitioner after coming out of the Company initiated several proceedings against the Company and the Director A. Nandaa Kumar. One of the proceedings was a complaint being registered with the Bureau of Emigration invoking Section 10 of the Act.

It was alleged that the erstwhile Director of the Company was recruiting employees from India, luring them into good jobs and was not fulfilling the promise. All this was happening without the agency being registered as one to recruit employees outside India, it was alleged.

The petition was opposed by Kumar, who alleged that petitioner's fraudulent activities were the reason for the downfall of the Company and now, in order to get over his liability, several cases are being registered by him against.

On going through the records, the bench noted that five years after moving out of Cambodia, the petitioner sought to register several complaints against company's director. It also noted that the City Crime Branch had investigated the matter and submitted its inquiry report to the Deputy Commissioner of Police opining that the respondent was not running any recruitment agency, much less an illegal recruitment agency.

The court also relied on the communication sent by the Ministry to the DGP of Tamil Nadu wherein it was mentioned that it is a legal matter between the petitioner and the Company for non-payment of salaries, and the Ministry of External Affairs was of the opinion that the matter was beyond the purview of Section 10 of the Act.

Then referring to Section 10 of the Act the bench said,

“The very section mandates that no one should be a recruiting agent. 10. The finding by the City Crime Branch, Bengaluru is that the 5th respondent was not running any recruiting agency. Moreover, if the petitioner was aggrieved by non-payment of salary which is the prime allegation against the Company, he ought to have agitated it without any loss of time in the year 2014 at Cambodia or immediately after return to India in the year 2014.”

It then held “For the first time a complaint emerges against the 5th respondent in the year 2019 that too for violation of Section 10 of the Act. No fault can be found with the communication impugned in the petition as non-payment of salary does not form an issue under Section 10 of the Act.”

It added “The petitioner seeks to give a colour of violation of Section 10 of the Act by contending that the 5th respondent was running a recruiting agency without a valid certificate and, therefore it was illegal. It is too late in the day for the petitioner to contend that the 5th respondent was running an illegal recruiting agency.”

Observing that an FIR is registered under Sections 10 and 24 of the Act is registered by the petitioner before the Sanjaynagar Police Station, the bench said “The communication that is impugned is undoubtedly an internal communication and since it is beyond the purview of Section 10 of the Act and the issue being pending investigation in Crime No.185 of 2021, this Court would hold its hands to interpret the said communication.”

Accordingly, the Court rejected the petition with liberty to the petitioner to knock at the doors of the appropriate authority.

Case Title: Raman Sundaresan And Joint Secretary, Ministry of External Affairs & Others

Case No: WRIT PETITION No. 16821 OF 2022

Citation: 2023 LiveLaw (Kar) 187

Date of Order: 16-05-2023

Appearance: Advocate A Mahesh Chwdhary for petitioner.

DSGI H.Shanthi Bhushan for R1 AND R2.

AGA Shwetha Krishnappa for R3 and R4.

Special PP P Prasanna Kumar for R5.

Click Here To Read/Download Order