Dismissed

Capt. Pedro Guilherme Da Veiga Pereira E Oliveira Artilheiro v. Union of India

Kerala HC17 Nov 2021WA/1492/2021

Case brief

AI extract

What is this about?

This writ appeal challenged an order granting the appellant limited admission to India and leaving other contentions open. The two-judge bench observed that the lower court correctly noted the appellant's restricted prayer confined to collecting belongings. As the appellant cannot adjudicate matters pertaining to a third individual (another pilot), the appeal lacked merit. The writ appeal was dism

What did the court decide?

Writ appeal dismissed as there is no prima facie case to interfere and the appellant cannot adjudicate matters relating to another individual.

Capt. Pedro Guilherme Da Veiga Pereira E Oliveira… — Service and Employment | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 17TH DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943
WA NO. 1492 OF 2021

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AGAINST THE ORDER/JUDGMENT IN WP(C) 12911/2021 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANT/S:

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CAPT. PEDRO GUILHERME DA VEIGA PEREIRA E OLIVEIRA
ARTILHEIRO,

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AGED 47 YEARS, S/O.MR.DARIO JOSE DE OLIVEIRA ARTILHEIRO,
RUA DOS MORANGOS, NO.129, 2890-555 ALCOCHETE, PORTUGAL.

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BY ADVS.

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AYSHA ABRAHAM
YESHWANTH SHENOY

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RESPONDENT/S:

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1 UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, RAISINA HILLS, NEW DELHI - 110 001.

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2 DIRECTORATE GENERAL OF CIVIL AVIATION THROUGH THE DIRECTOR GENERAL, OPP. SAFDARJUNG AIRPORT, AURBINDO MARG, NEW DELHI - 110 003.

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3 BUREAU OF CIVIL AVIATION SECURITY THROUGH THE DIRECTOR GENERAL, "A'" WING, I-III FLOOR, JANPATH BHAWAN, JANPATH, NEW DELHI - 110 001.

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4 DY.CHIEF LABOUR COMMISSIONER KENDRIYA SHRAM SADAN, OOLIMUGHAL, KAKANAD, ERNAKULAM - 682 030.

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5 INTERGLOBE AVIATION LIMITED THROUGH ITS CEO & WHOLETIME DIRECTOR, MR.RONOJOY DUTTA, CENTRAL WING, GROUND FLOOR, THAPAR HOUSE 124, JANPATH, NEW DELHI - 110 001.

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W.A.No.1492 of 2021

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6CAE SIMULATION TECHNOLOGIES PVT.LTD.
THROUGH ITS DIRECTOR, MR.VIKAS KHURMA,
SURVEY NO.26 & 27, 3RD FLOOR,
BANDARAMANAHALLI VILLAGE, UGANAVADI POST,
DEVANHALLI, BANGALORE - 562 110.

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BY ADVS.
KURIAKOSE VARGHESE
MATHEW A KUZHALANADAN
SUDEEP ARAVIND PANICKER
V.SHYAMOHAN
SRI. DAYASINDHU SREEHARI N.S, CGC,
SRI.ADITYA VENUGOPALAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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W.A.No.1492 of 2021

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JUDGMENT

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Dated this the 17^th day of November, 2021

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S.Manikumar, C.J.

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Before the writ court, the petitioner has sought for the following reliefs:

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“(I) To issue Writ of Mandamus or any other appropriate writ or direction directing the Respondent No.1 to allow the entry of the Petitioner into India for a period of 90 days to ensure completion of his documentation and relocation back to his home country.

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(ii) To issue Writ of Mandamus or any other appropriate writ or direction to restrain the Respondent No.2 from issuing FATA to any other persons other than employees or persons directly under the control and supervision of the operator.

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(iii) To issue Writ of Mandamus or any other appropriate writ or direction to restrain the Respondent No.3 from issuing 'security clearance' to any other persons other than employees or persons directly under the control and supervision of the operator.

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(iv) To issue Writ of Mandamus or any other appropriate writ or direction directing the Director General of the Respondent No.2 and 3 to conduct an inquiry into the involvement of officers responsible for issue of FATA and security clearance in violation of the

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W.A.No.1492 of 2021

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Regulations to the Petitioner as well as other Pilots operating for all Air Operators.

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(v) To issue Writ of Mandamus or any other appropriate writ or direction directing the Respondent No.4 to conduct an inquiry and initiate appropriate proceedings including criminal prosecution for violation of labour statutes.”

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However, when the matter came up for consideration on 29.09.2021, the writ petitioner seemed to have restricted his prayer only to visit India for a short period to take his belongings from an apartment at Kochi and further seemed to have prayed that he may be allowed to raise all other legal contentions before the appropriate authorities in accordance with law.

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Taking note of the abovesaid submission, learned Assistant Solicitor General of India appearing for the official respondents and the learned counsel for CAE Simulation Technologies Pvt. Ltd., Bangalore (respondent No.6 therein) were put on notice. After hearing the parties, writ court, vide judgment in W.P.(C)No.12911 of 2021 dated 29.9.2021, passed the following order:

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W.A.No.1492 of 2021

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“2. When the matter came up for consideration today, the counsel for the petitioner submitted that the petitioner is limiting prayer to visit India for a short period to take his belongings from an apartment at Kochi and he may be allowed to raise all other legal contentions before the appropriate authorities in accordance to law.

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When this submission was made, I requested the ASGI and the counsel for the 6th respondent about their opinion. The Senior Counsel who appeared for the 6th respondent submitted that if the intention of the petitioner is only to collect his belongings from the apartment and to take it back to his native place, the 6^th respondent will not stand in the way. He can use his employment visa itself for that purpose alone. The ASGI submitted that if the 6th respondent agrees for the same, the 1^st respondent will not stand in the way on condition that the petitioner will be here in India, only for one week and the purpose is only to take his belongings from the apartment in Kochi and he will leave the country within one week.

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In the light of these submissions, I think this writ petition can be disposed recording the submission of respondents 1 and 6.

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Therefore, this writ petition is disposed in the following manner:

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The petitioner is free to visit India for a period of one week to take his belongings from the apartment situated at Kochi. After reserving the flight tickets, the petitioner shall inform the 6^th respondent and the

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W.A.No.1492 of 2021

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Foreigners Regional Registration Office (FRRO) about the date of his arrival and departure.

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All other contentions raised in this writ W.P. (C).No.12911/2021 6 petition are left open and the petitioner is free to approach the appropriate authorities in accordance to law. The petitioner is free to submit appropriate representation for that purpose before the appropriate authority and the appropriate authority will do the needful in accordance to law.”

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Being aggrieved, writ petitioner has also filed R.P.No.785 of 2021. Perusal of the grounds of review inter alia indicates two aspects, (1) security clearance has been refused to one Capt. Ali Baharlooei, employed by respondent Nos.5 and 6 therein and (2) writ petitioner/appellant had prayed to extend his stay until 15.11.2021, and undertook to leave the country before 20.11.2021 depending upon the availability of tickets.

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After considering the grounds raised in the review petition as well as the submissions, writ court, vide order in R.P.No.785 of 2021 dated 9.11.2021, dismissed the same as hereunder:

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W.A.No.1492 of 2021

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“3. I perused the memorandum of review petition and also heard the learned counsel for the review petitioner. When the writ petition came up for consideration, the counsel for the petitioner limited his prayer for a visit to India for a short period to take his belongings from his apartment. This Court specifically stated in the judgment that the review petitioner can stay in India only for a period of one week to take his belongings from the apartment situated at Kochi. This was just like a consent order. This Court also clearly stated in the judgment that, all the contentions raised in the writ petition are left open and the petitioner is free to approach the appropriate authorities in accordance to law, if there is any other grievance to the petitioner. In such circumstances, I think there is nothing to review in the judgment.

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After hearing the counsel for the Review petitioner and also after going through the memorandum of Review petition along with the Annexures produced in the Review petition, I see no reason to review the judgment. Even then, this Court was inclined to extend the period of stay of the petitioner in India till 12.11.2021, because a time extension petition was filed before the expiry of the time originally fixed in the judgment. That petition was withdrawn because this Court observed that the same is not maintainable in a disposed case. Now the petitioner wants to reagitate the case after reviewing the judgment, which is not legally permissible.

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W.A.No.1492 of 2021

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Therefore, the Review petition is dismissed.”

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Though the judgment in W.P.(C)No.12911 of 2021 dated 29.9.2021 is assailed on various grounds and in particular, ground No.I, as regards the failure to take note of the alleged security lapse, this court is not inclined to interfere with the impugned judgment in W.P.(C)No.12911 of 2021 dated 29.9.2021 for the reasons that when the matter came up for hearing on 29.09.2021, there was a categorical submission before the learned single Judge that the petitioner was limiting his prayer only to visit India to take his belongings from an apartment at Kochi and further seemed to have prayed that he may be allowed to raise all other legal conditions before the appropriate authorities in accordance with law.

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When the writ petitioner/appellant himself had restricted the reliefs, placing on record the same, writ court has passed the orders and we find no error in the impugned judgment.

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Aspect of refusal to give security clearance to another

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W.A.No.1492 of 2021

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Captain – Capt. Ali Baharlooei, employed by respondent Nos.5 and 6 in the writ petition is not required to be adjudicated in

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the petition filed by the writ petitioner as it pertains to the cause for the above said Capt. Ali Baharlooei, to proceed further.

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Petitioner cannot be permitted to step into the shoes of Capt. Ali Baharlooei, where there is an allegation of refusal to give security clearance. In the above said circumstances, ground No.I is untenable.

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For the reasons stated supra, we do not find that there is any prima facie case to entertain the instant writ appeal. Accordingly, writ appeal is dismissed.

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Pending interlocutory applications, if any, shall stand closed.

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Sd/- S.Manikumar Chief Justice

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Sd/- Shaji P.Chaly Judge

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vpv

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//true copy//

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P.A. to Judge

Capt. Pedro Guilherme Da Veiga Pereira E Oliveira Artilheiro v. Union of India

Case brief

What is this about?

What did the court decide?

Capt. Pedro Guilherme Da Veiga Pereira E Oliveira Artilheiro v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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