Delhi High Court
Lt. Col. Hawa Singh Jattayan ... vs Union Of India And Ors. on 1 February, 2018
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 586/2018 & CM No.2566/2018
LT. COL. HAWA SINGH JATTAYAN
(RETD.) ..... Petitioner
Through: Mr T. L. Garg and Mr Rohan
Garg, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr Sanjeev Narula, CGSC with
Ms Anumita Chandra and Mr
Brajesh Kumar, Govt. Pleader
for UOI.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 01.02.2018
VIBHU BAKHRU, J
1. The petitioner has filed the present petition impugning an order
dated 08.09.2017 (hereafter „the impugned order‟) passed by the
Director General Resettlement (hereafter „DGR‟). By the impugned
order, the petitioner has been dis-empanelled from DGR Coal Loading
and Transportation Scheme.
2. The Directorate General Re-Settlement, Ministry of Defence
has floated various schemes for providing an opportunity of
employment to ex-servicemen. One such schemes is of sponsoring ex-
servicemen for taking up the work of loading/unloading and
transportation of coal for Coal India Limited and its subsidiaries.
3. The Scheme to promote coal transportation companies by ex-
servicemen was formulated between the Ministry of Energy (now
Ministry of Coal) and Ministry of Defence in 1979 with the dual
objective of providing assured transport for coal to Coal India Limited
and for providing re-employment to rehabilitate ex-servicemen in
civilian life. On 08.04.1993, a Memorandum of Understanding (MoU)
was entered into between Ministry of Defence (Directorate General of
Resettlement) and Ministry of Coal (Coal India Limited). This was
superseded by another MoU executed on 16.04.1999.
4. In terms of the said scheme, the work of coal loading/unloading
and transportation is provided to companies (ESM Companies) formed
by ex-servicemen with the said object.
5. The petitioner, an ex-serviceman, applied to form an ESM
Company with the object to take up the work of loading/unloading and
transportation of Coal on 11.06.2012. The petitioner also submitted an
affidavit on 11.06.2012.
6. The petitioner formed the Company - PCG Coal Carriers Pvt
Ltd. - on 13.07.2012 along with three other ex servicemen. On
19.07.2012, the DGR sponsored the said ESM Company for a contract
for transportation of coal for South Eastern Coalfields Limited SECL).
And, the said ESM Company commenced operations for SECL on
18.09.2012.
7. It is stated that on 13.10.2015 and 07.06.2016, the DGR sent
letters to Directors of ESM Companies to submit Form 26AS. The
petitioner did not comply with the same as, according to the petitioner,
the same was not required under the guidelines applicable to the
petitioner.
8. On 17.10.2016, the DGR issued a show-cause notice calling
upon the petitioner to show cause why he should not be dis-
empanelled from the scheme on account of failing to submit the Form
26AS as directed.
9. The petitioner states that a meeting was held on 11.05.2017 at
the office of the DGR where he was informed that the petitioner would
have to resign from ECHS. The petitioner states that he informed the
DGR that his contract with ECHS was expiring on 07.08.2017 and he
would not renew that contract.
10. The DGR passed the impugned order dis-empanelling the
petitioner. The reasons for taking the punitive action as set out in the
impugned order are quoted below:-
"The following irregularities have been noticed in
violation of MoU and Guidelines on Formation and
Running of the Coal Loading and Transportation
Companies by you:-
(a) Violation of Affidavit by you that you are/will not be
employed in a Govt/Semi Govt/Private job after
sponsorship of the ESM Coal company.
(b) You continued to work in ECHS Stn HQ, Hissar in
contravention to the MoU & the Guidelines of DGR."
11. Before proceeding further, it would be relevant to refer to the
affidavit affirmed by the petitioner on 11.06.2012. The said affidavit
reads as under:
"1. That is undertaking that an affidavit submitted
earlier by me regarding employment self employed still
holds goods.
2. That I am not employed in any manner.
3. That I reconfirm that I have not taken any
assistance from ZSB/RSB/DGR earlier.
4. That I will adhere to all the provisions applicable
to me of Memorandum of understanding (MOU) signed
between DGR (MOD) and South Eastern Coalfields Ltd.
(SECL) including employment of minimum of 75% of
total regular employees as ESM in the sponsored
Company.
5. That I also undertake that I will not in any manner
and under any circumstances sub contract whole or part
of the coal transportation work allowed to my company.
6. That I will submit half yearly return and annual
return of the ESM Company on the prescribed performa
as per the stipulated time lied down in para 21 (a) of the
MOU. In addition I will also submit to DGR audited
report of accounts of the company by 30th June every
year."
12. Mr Garg, the learned counsel appearing for the petitioner
contended that the allegation that the petitioner had furnished any
incorrect affidavit was wrong. The petitioner was not employed at the
material time when he had affirmed the affidavit in question. He
further contended that the petitioner was also not prohibited from
taking up the employment under the guidelines that were prevalent at
the material time.
13. Mr Sanjeev Narula, the learned counsel appearing for the
respondent countered the aforesaid contentions and contended that the
said affidavit is incorrect and, therefore, the necessary action for dis-
empanelling the petitioner was taken. He submitted that the petitioner
was employed on 11.06.2012 - the date on which the affidavit was
affirmed. He also submitted that in terms of the relevant guidelines
applicable at the material time, the petitioner was proscribed from
taking up any further employment.
14. In response to a pointed query as to what was material available
with the respondents on the basis of which the DGR had concluded
that a false affidavit was filed by the petitioner, the learned counsel
referred to a copy of the Form 26AS available in the file of the
respondent. The said form (which contains the details of the tax
deducted at source) indicates that all the transactions referred therein
are post 2014-2015 and none of the transactions as reflected in Form
26AS pertains to the period prior to 11.06.2012. Thus, the contention
that the petitioner had affirmed a false affidavit that he was not
employed, is without any basis and cannot be sustained.
15. It is also clear from the affidavit that the petitioner had not
affirmed that he would not be employed in a Govt/private job after
sponsorship of the ESM Coal Company as observed in the impugned
order. As noticed above, one of the two reasons for dis-empanelling
the petitioner was his alleged violation of the terms of the affidavit
submitted by him. This is, plainly, erroneous and the impugned order
is liable to be set aside on this ground alone.
16. The next question to be examined is whether the petitioner has
violated the MoU or the DGR Guidelines.
17. The petitioner had applied for formation of the ESM Company
on 11.06.2012 and, thereafter, had formed the Company - PCG Coal
Carriers Pvt Ltd.- on 13.07.2012 along with three other ex servicemen.
18. Mr Narula has handed over a copy of the relevant guidelines -
"Guidelines on Formation and Running of Ex-Servicemen Coal
Transport Companies" (hereafter „the Applicable Guidelines‟) - as
applicable at the material time and has drawn the attention of this
Court to clause (iv) sub-paragraph (e) of paragraph 2 of the said
guidelines, which is set out below:-
" ELIGIBLITY
2. The eligibility criteria for various compliments of
the ex-servicemen Coal Transport Companies to be
sponsored to the coal subsidiaries are as under:-
XXXX XXXX XXXX XXXX
(e) Miscellaneous Instructions
XXXX XXXX XXXX XXXX
(iv) All ESM associated with ESM Coal Transport
Company must have exemplary character, should not
have been dis-qualified/debarred from employment/self
employment assistance from DGR and should not be
currently employed/self employed."
19. A plain reading of the Applicable Guidelines clearly indicates
that there is no prohibition for any sponsored Director to take up
employment after the ESM Company has been formed.
20. There is also no term in the MoU dated 16.04.1999, which
proscribes a Director of an ESM Company from taking up other
employment. The MoU dated 16.04.1999 was superseded by another
MoU executed on 14.12.2013; however, clause 22 of the said MoU
expressly provided that "Existing ESM Companies will continue to be
governed by the previous MoU dated 16.04.1999".
21. Mr Narula, also referred to the order passed by this Court in
Major General VN Prasad (Retd.) v. Union of India & Anr.: W.P.(C)
2369/2017, decided on 10.07.2017 and drew the attention of this
Court to paragraph no. 14 of the said decision, which reads as under:-
"14. The contention that any of the restrictions imposed
under the Guidelines are violative of Article 19, is
also unmerited. On the contrary, the Guidelines
provide a framework for providing employment
opportunities to ex-servicemen. The restriction that
ex-servicemen availing such opportunities cannot
carry on any other business has been inserted only
to exclude such ex-servicemen who have other
employment opportunities, from availing the
benefits of the resettlement scheme. This is to
ensure that only the ex-servicemen who otherwise
do not have the necessary opportunities are ensured
some work post their retirement."
22. On the strength of the aforesaid observations made by this
Court, Mr Narula contended that the stipulation contained in the
Applicable Guidelines must be read in the meaningful manner and to
imply that the petitioner would continue to remain unemployed during
the entire period of sponsorship/empanelment.
23. The aforesaid contention is plainly bereft of any merit. First of
all, no such express prohibition can be read into the Applicable
Guidelines. Secondly, the impugned order imposes a punition on the
petitioner. No such punitive measure can be taken for violation of a
term which is not expressly stated or is clearly understood. In the
event the DGR so desired, the stipulation for the petitioner not to take
employment should have been clearly spelt out in no uncertain terms.
24. The decision in the case of Major General VN Prasad (Retd.)
(supra) also does not assist the respondents in any manner as it does
not pertain to the Applicable Guidelines. In that case, the guidelines
as applicable clearly contained a provision which proscribed the
sponsored ex-servicemen to take up any other employment during his
tenure as a Director. The relevant clause of the guidelines as
applicable in that case, reads as under:-
"2- Eligibility: The eligibility criteria for various
categories of the ex-Servicemen (ESM) associated with
the Coal Transport Companies are as under:-
(a) Directors of the ESM Coal Transport
Company :
XXXX XXXX XXXX XXXX
(iii) At the time of sponsorship of the ESM Company
and there after all through the tenure as Director of the
company the Director is not to be employed/self
employed or hold any position of profit in any
institution other than that of the ESM Company."
25. The petitioner was empanelled prior to the said guidelines
coming in force and, therefore, the above stipulation is not applicable
to the petitioner. The fact that the above restriction has been held to
not violate Article 19(1)(g) of the Constitution of India cannot
possibly read to mean that the Applicable Guidelines must be read to
implicitly contain such stipulation so as to warrant a punitive action
against the petitioner for violating the same.
26. The petition is, accordingly, allowed. The impugned order is set
aside. The pending application also stands disposed of. The parties are
left to bear their own costs.
VIBHU BAKHRU, J
FEBRUARY 01, 2018
MK/PKV
