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2018 Supreme(Del) 619
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
Lt. Col. Hawa Singh Jattayan (Retd.) - Petitioner
Versus
Union of India & Ors. - Respondents
W.P. (C) 586 of 2018 & CM No. 2566 of 2018
Decided On : 01-02-2018
Advocate Appeared:
For the Petitioner: Mr. T.L. Garg, Mr. Rohan Garg
For the Respondents: Mr. Sanjeev Narula, Ms. Anumita Chandra, Mr. Brajesh Kumar
The court clarified the interpretation of the MoUs and guidelines to establish that there was no prohibition for the petitioner to take up employment after forming the ESM Company.
Headnote:
DGR Scheme - Dis-empanelment of Ex-Serviceman - 1979 MoU, 1993 MoU, 1999 MoU - Violation of Affidavit - Employment Prohibition - Applicable Guidelines - Court's Interpretation
Fact of the Case:
The petitioner, an ex-serviceman, formed an ESM Company for coal transportation under a scheme by the Ministry of Defence and Ministry of Coal. The petitioner was dis-empanelled for alleged violation of affidavit and employment prohibition.
Finding of the Court:
The court found that the petitioner did not violate the terms of the affidavit and the employment prohibition as alleged by the DGR. The court interpreted the applicable guidelines and MoUs to conclude that there was no prohibition for the petitioner to take up employment after forming the ESM Company.
Issues: Violation of affidavit, employment prohibition, interpretation of MoUs and guidelines
Ratio Decidendi: The court held that the petitioner did not violate the terms of the affidavit and the employment prohibition. The court interpreted the MoUs and guidelines to clarify that there was no prohibition for the petitioner to take up employment after forming the ESM Company.
Final Decision: The impugned order dis-empanelling the petitioner was set aside, and the petition was allowed.
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 an
