The Odisha government’s decision on refusing to grant a no-objection certificate to an in-service doctor for availing passport to visit his married daughter and grandchild based abroad, has been quashed by the Orissa High Court, saying it amounts to “infringement of the right to liberty guaranteed under Article 21 of the Constitution of India”.
The application filed by petitioner-Dr. Ashok Kumar Behera-was rejected on the ground that he was unauthorizedly absent since 28 September 2013 and three departmental proceedings were pending against him.
The restriction imposed by the State Government is unjustified also for the reason that mere pendency or contemplation of disciplinary proceeding cannot, under any circumstances, be treated as proven guilty of the employee concerned, the Single Bench of the Court, Justice Sashikanta Mishra ruled in an order pronounced on Tuesday.
It would militate against the fundamental tenet of criminal jurisprudence that every person is presumed innocent until proven guilty, Justice Mishra stated in the order.
“From a conspectus of the facts, contentions raised and the analysis made, this Court holds that the decision of the authorities to refuse NOC to the petitioner on the ground of pendency of disciplinary proceedings/ criminal cases against him indirectly amounts to infringement of his fundamental right to liberty as per Article 21 of the Constitution of India.
“Thus, non-issue of NOC on the ground cited cannot be sustained in the eye of law. The concerned authorities are directed to issue NOC in favour of the petitioner without any further delay and in any case, not later than six weeks from today”, the High Court ruled.
The petitioner has stated that the sole purpose of his visiting Singapore is to meet his daughter and grandchild. His right to travel abroad is a fundamental right under Article-21 of the Constitution of India, which cannot be taken away by an executive instruction.
The departmental proceedings in question are continuing since 2015, but his request for grant of NOC was rejected, which is in conflict with the law laid down by the Constitution Bench of the Supreme Court in the case of Maneka Gandhi v. Union of India, the petitioner’s counsel argued.
The petitioner’s counsel argued that the right to travel abroad has been recognized as a fundamental right guaranteed under Article 21 of the Constitution of India and cannot be abrogated in the absence of any law. Here, law means enacted law and therefore, a mere executive order cannot curtail the fundamental right.