Delhi District Court
J Nehru vs D Banerjee And Ors on 31 May, 2024
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 59152 of 2016
Date of Institution : 12.05.2014
Final arguments heard : 12.03.2024
Date of Judgment : 31.05.2024
Shri J. Nehru
Former CMD/HFCL,
S/o Late Sh. S.N. Nehru
Flat No. 8734 PKT 8,
Sector-C, Vasant Kunj
New Delhi-110070 .....Plaintiff
Vs.
1. Shri D. Banerjee
B-405, Curzon Road Hostel
K.G. Marg, New Delhi-110001
2. Shri J.K. Puri
Plot No. 3, Sector-22
Gurgaon-122015
3. Shri C.S. Rangaraj
Flat No. 108, Suruchi CGHS
Plot No. 31, Sector-10,
Dwarka, New Delhi-110075
4. Dr. Birendra Kumar Sinha
Member (A) Central Administrative Tribunal
(CAT)
5. Shri Vijay Chibber
59, New Motibagh
New Delhi
6. Shri Satish Chander
C-II-98, Satya Marg,
Chanakyapuri, New Delhi
CS No. 59152 of 2016
J Nehru Vs. D Banerjee & Ors.
Page No. 1 Of 80
7. Shri Sanjay Kumar Sinha
D-II/122, West Kidwai Nagar,
New Delhi-110023
8. Shri Rajesh Agarwal
M-2763, Netaji Nagar,
New Delhi
9. Shri S. Krishnan
B-31, Gamma 1,
Greater Noida (UP)
10. Union of India
Through Secretary
Department of Fertilizers
Ministry of Chemical & Fertilizers
Shastri Bhawan, New Delhi-110001
.....Defendants
JUDGMENT
1. The plaintiff has filed the present suit seeking damages of Rs. 1 Crore against the defendants.
2. The present suit was initially filed by the plaintiff before the Hon'ble High Court of Delhi as CS (OS) No. 1372/2014, and, subsequently, the suit came to be transferred vide order dated 18/01/2016 to the District Court in light of the amendment to the pecuniary jurisdiction.
PLAINT
3. The case of the plaintiff as pleaded in the plaint is as follows:
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3.1. The plaintiff is an engineer and started his career in February 1964 with the Border Roads Organization as a Class-I officer in the Government of India.
Thereafter, the plaintiff served in reputed organizations like BHEL, Bokaro Steel Ltd. and Engineering Projects India Ltd. (EPI). The plaintiff was posted in Moscow as First Secretary in 1973-74 with the Indian Embassy for coordinating setting up of the Bokaro steel plant. The plaintiff was posted with EPI in Iraq from 1978-88 and as head of EPI's operations in Iraq from 1984. The plaintiff implemented the 'Council of Ministers Project' i.e. office of the then President of Iraq. His work was highly commended by all concerned and his visa for residence in Iraq was extended by the Revolutionary Command Council of Iraq headed by the President of Iraq, a singular honour to any foreigner in that country. The plaintiff was held in very high esteem by all those who knew him and some others who had heard of him.
3.2. After having established his reputation and demonstrated his competence in implementing engineering projects in diverse fields in India and overseas, the plaintiff was selected by the Appointments Committee of the Cabinet, on the recommendations of the Public Enterprises Selection Board, as Chairman and Managing Director of Hindustan Fertilizer Corporation Limited (HFCL), CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 3 Of 80where renovation of its plants was expected, which he served from July 1997 till his superannuation in January 2001. The plaintiff carried with him a treasure of experience and reputation as an outstanding officer.
3.3. Project management and implementation has been the specialisation of the plaintiff all through his illustrious and exemplary career within and outside the country. The plaintiff has salvaged many a sinking project and has completed several others ahead of time schedule. The plaintiff has written several papers on project management and implementation which have been published in reputed journals. The plaintiff is one of the best in the project management field in the country. The plaintiff enjoys a good reputation in the society due to high level of performance, diligence, dignity and integrity maintained by him in his professional and personal life.
3.4. After attaining superannuation, the plaintiff was leading a peaceful life when, after over five years of his retirement, the defendants arbitrarily and recklessly issued a Memorandum dated 28.04.2006, conveying the "displeasure of the Government" to the plaintiff for the alleged time and cost overrun of the Namrup Revamp Project. Earlier, when the plaintiff was the CMD in HFCL, Namrup was one of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 4 Of 80the four units of HFCL, viz. Namrup, Barauni, Durgapur, Haldia.
3.5. The aforesaid displeasure was stated to have been conveyed to the plaintiff on the basis of a Report of the Standing Committee of the Department of Fertilizers (DOF) which is stated to have investigated during the period from March 2003 to August 2005, the reasons for the alleged delays and cost overrun in the implementation of the Namrup Revamp Project. The Report of the said Committee had alleged certain acts of omissions and commissions on the part of the plaintiff allegedly committed during his tenure as CMD of HFCL in the implementation of the revamp project from November 1998 till his superannuation in January 2001.
3.6. This memorandum of displeasure had been issued unilaterally and without affording the plaintiff any opportunity of being heard and that too in April 2006, i.e. five years and three months after his retirement upon the age of superannuation in January 2001. The plaintiff gave a detailed representation vide letter dated 14.05.2006 explaining that the allegations against him were false and baseless and fabricated and requested that the memorandum be recalled. However, the representation was never responded to. Further CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 5 Of 80reminders and personal visits were made by the plaintiff to senior officers of Department of Fertilizer (DOF) as well but there was no response. In response to a subsequent reminder representation dated 09.11.2007, the defendants, vide letter dated 06.02.2008, categorically refused to withdraw the memorandum dated 28.04.2006 stating that the plaintiff could not be absolved from the overall delay in time and cost overrun that had occurred as he was CMD for more than two and a half years.
3.7. The intention of the defendants was to punish the plaintiff for an offence which he had never committed by him by defaming and denigrating him in the eyes of the public at large and the people who knew him personally and professionally and for harassing him, causing him mental agony and hurt and blocking his future opportunities. In spite of being pointed out that the allegations against the plaintiff were false and baseless, the defendants refused to withdraw the memorandum. The plaintiff again took up the issue with the defendants for withdrawal of the displeasure. The defendants, vide letter dated 15.04.2009, reiterated their decision conveyed vide letter dated 06.02.2008 stating that the plaintiff could not be absolved of his share of responsibility.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 6 Of 803.8. Being aggrieved, the plaintiff filed a writ petition being W.P.C. No.3883/2010 titled J. Nehru vs. Union of India before the Hon'ble High Court of Delhi impugning the aforesaid memorandum dated 28.04.2006 and the subsequent letters/memos dated 06.02.2008 and 15.04.2009. On 01.06.2010, when the writ petition came up for hearing, the Hon'ble High Court found that the impugned communications had been issued without giving any opportunity to the plaintiff to present his version. The Hon'ble High Court issued notice to the defendant with a direction to consider whether the impugned communications could be withdrawn and the plaintiff could be given an opportunity to explain the circumstances.
3.9. During the course of hearing in the writ petition, the defendant submitted a letter dated 23.7.2010 to the Hon'ble High Court stating that if the Hon'ble Court so directed, the Secretary (Fertilizer) would call the plaintiff for giving him a hearing in the matter and that thereafter, the competent authority, i.e. the Minister (C&F), would take a view on the representation. In that view of the matter, the Hon'ble High Court directed that the plaintiff would be informed by the Secretary (Fertilizers) within 10 days of the date on which he should appear. It was further directed that the material on the basis of which the impugned order may have been passed CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 7 Of 80shall also be furnished to the plaintiff. It was kept open for the plaintiff to place such documents that he wished to rely on before the Secretary (Fertilizers). It was further directed that, thereafter, the Union Minister of Chemicals & Fertilizers shall give his decision on the plaintiff's representation within a further period of four weeks. If still aggrieved, it was left open to the plaintiff to seek such remedy as may be available to him in law. With these directions, vide order dated 30.7.2010, the Hon'ble High Court disposed of the writ petition by setting aside the memorandum dated 28.04.2006 and the letters/memos dated 06.02.2008 and 15.04.2009.
3.10. However, despite the clear orders of the Hon'ble High Court, the defendants proceeded in a manner as if the Memorandum dated 28.4.2006 and letters/memos dated 06.02.2008 and 15.04.2009 were still in existence and the defendants were only to justify and sustain the said memos whereas the same had already been set aside in the writ proceedings.
3.11. In purported compliance of the order dated 30.07.2010, the defendants vide letter dated 04.08.2010 asked the plaintiff to appear before the Secretary (Fertilizers) on 06.08.2010 for a personal hearing. As per the directions of the Hon'ble High Court, the defendants were to furnish to the plaintiff CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 8 Of 80the material on the basis of which the impugned order may have been passed, however, there was non-compliance of this direction and no material was furnished to the plaintiff. The plaintiff visited the office of the Secretary (Fertilizers) on 06.08.2010 and pointed out the directions of the Hon'ble High Court. No hearing took place on the said date. The defendants realized that the plaintiff had been called without furnishing the material which was directed by the orders in the writ petition. Vide letter dated 16.08.2010, the defendants supplied a copy of the report of the Standing Committee and fixed 26.08.2010 as the new date of hearing by the Secretary.
3.12. From the information received from the defendants vide letter dated 10.12.2008 under the RTI Act and as confirmed by the letter dated 16.08.2010, it was evident that there was no other material or document except the Report of the Standing Committee which formed the basis for the decision of the defendants to convey the displeasure of the Government to the plaintiff. Had there been any other material or document apart from the Report of the Standing Committee to substantiate the allegations against the plaintiff, the same would have been supplied to the plaintiff at least in compliance with the directions of the Hon'ble High Court. Even otherwise, the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 9 Of 80defendants had communicated to the plaintiff vide letter dated 10.12.2008 as follows:
"18.1 The Committee while submitting its report to the Department did not submit any list of documents perused by them during the course of their examination nor in support of the findings of the Commitee".
Thus, it was clear that there was nothing on record to substantiate the allegations and these had been fabricated and were just off the cuff remarks.
3.13. Vide letter dated 24.08.2010, the plaintiff submitted a comprehensive representation to the Secretary, DOF against the findings of the Standing Committee and the events subsequent thereto. On 26.08.2010, a so-called personal hearing took place. However, again no minutes/proceedings were drawn or recorded in the presence of the plaintiff. The subject matter was not discussed and no signatures of the plaintiff were obtained on any proceedings. Only the written representation was received by the office of the Secretary (Fertilisers). During the meeting, only pleasantries were exchanged. The Secretary (Fertilisers) who was supposed to hear the plaintiff was due to retire on 31.08.2010 and as such probably the Secretary or anyone else had no interest to grant any hearing to the plaintiff.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 10 Of 803.14. The defendants again passed memorandum dated 10.09.2010 illegally, unilaterally and arbitrarily holding the plaintiff to be guilty of the alleged delay and cost overrun for which he was not responsible.
3.15. The plaintiff was shocked to receive the impugned order. However, to find the methodology and reasoning behind the said order, the plaintiff vide letter dated 22.10.2010 sought relevant information under the RTI Act. Vide letter dated 18.11.2010, the defendants provided the relevant information under the RTI Act and also provided copies of the relevant note sheets. Copy of the report of the Standing Committee was again supplied. The note sheets dated 10.08.2010, 13.08.2010, 16.08.2010, 30.08.2010 and 31.08.2010 received under RTI Act speak volumes of the mindset of the defendants and its officials. Even before providing any hearing to the plaintiff in compliance of the order dated 30.07.2010 passed by the Hon'ble High Court in the writ petition, the Deputy Secretary/DOF in his note dated 10.08.2010 had recorded that there was no case for the disciplinary authority to withdraw the Memorandum communicating government's displeasure issued to the plaintiff vide O.M. dated 28.04.2006. Thus, the Deputy Secretary/DOF had prejudged and pre-empted the issue even before a hearing could be taken by the Secretary (F) or the decision could be taken by the learned Union CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 11 Of 80Minister (C&F). Secondly, the use of words "disciplinary authority" clearly suggests that the defendants were considering the matter as if the plaintiff was facing a departmental enquiry under disciplinary proceedings initiated against him, whereas there was none.
3.16. Though, admittedly, there was no record of any personal hearing notice being given to the plaintiff by the Standing Committee, still the defendants had gone ahead to rely upon the report of the Standing Committee to hold that the plaintiff was given opportunity of being heard and to further hold him guilty for a charge which he never had any opportunity to rebut. The decision to convey displeasure to the plaintiff taken by the defendants had emanated only from a perception of the defendants which was ill founded and had no rationale or legal or factual basis, and this blotted the illustrious career of the plaintiff.
3.17. As per the directions dated 30.07.2010, the Secretary (F) was to give a hearing to the plaintiff after furnishing the material relied upon by the defendants and to submit the matter before the Union Minster of Chemical & Fertilizers for decision. However, the course adopted by the Secretary (F) was not in consonance with the directions of the Hon'ble High Court.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 12 Of 803.18. Vide letter dated 23.11.2010, the plaintiff wrote to the Deputy Secretary/DOF and pointed out that he had not been supplied with the copies of the documents which supported the allegations of the Committee despite several other letters sent earlier on 7.6.2008, 8.9.2008, 12.9.2008, 23.9.2008, 22.10.2008, and 10.12.2008. It was also pointed out by the plaintiff that in the allegations contained in the Standing Committee Report there was no reference to any document/record or any material in support thereof and the Report also did not give copies of any documents in support of the said allegations.
3.19. The plaintiff had demitted office of CMD/HFCL in January, 2001 upon attaining age of superannuation after rendering exemplary and outstanding service to HFCL. HFCL was registered as a sick company with BIFR in 1992. Till the day the plaintiff was with HFCL, there was no delay or cost overrun and the progress on the revamp project was nearly in conformity with the time schedule considering the efficiencies of HFCL and PDIL and the overall existing state of affairs in Assam. Till his superannuation, nothing adverse was imputed or observed or commented against the plaintiff nor was it ever observed that the progress of the project was not satisfactory. On the contrary, all concerned appreciated the work done by him. Four Hon'ble CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 13 Of 80Ministers, three Secretaries and other senior officers who worked in the concerned Ministry during the tenure of the plaintiff in HFCL witnessed and appreciated his work.
3.20. Even before his retirement on 31.01.2001, the Board of Directors of HFCL, which included senior officers from the DOF, in its meeting held on the 15th & 18th December 2000, passed a resolution which recommended extension of plaintiff's tenure as CMD of HFCL in the best interest of the Namrup Revamp Project and the organization. As directed by the Board, a copy of the Board of Directors resolution was sent to the Department of Fertilizers for taking early action. The defendants however never acted on this. Amongst many other points made by the Board of Directors in its above stated resolution, the board recorded:
"Many of the complex, agenda tasks outlined above require continuity of Management, at least till formal completion of the revamped project. Shri Nehru has not only been associated with this revamp from its inception in November' 1998 but also possesses rich project field experience for over two decades including many years spent in GOl PSE in successfully implementing prestigious overseas contracts. For all these reasons, CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 14 Of 80
therefore, the Board by a majority of four to one, felt it would be in the corporate interest to retain the service of Shri Nehru for one more year after his scheduled superannuation in end January 2001".
3.21. Because of his excellent performance with HFCL, the petitioner even two years after his retirement was made an independent Director of National Fertilizers Limited (NFL)- a government controlled Corporation, by the Appointments Committee of the Cabinet on the recommendations of the DOF and the Ministry of Chemicals and Fertilizers, from October 2003 to October 2006. It was almost the same period when the Standing Committee was examining the matter. The fact of making him an independent Director of NFL itself was sufficient to establish that he had an unblemished outstanding career record and was enjoying excellent reputation.
3.22. The memorandum dated 10.9.2010 had been issued deliberately and with mala fide intention by the defendants for maligning the reputation of the plaintiff and in spite of repeated requests by the plaintiff, the defendants did not intentionally undo the wrongdoings. The defendants could convey derogatory and stigmatic observations, based on facts, during the service period and not thereafter, unless a right was reserved for doing so at the time CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 15 Of 80of retirement. There was no provision in the rules for issuing the memorandum of displeasure to the plaintiff who had already retired. The defendants had conveyed the displeasure by way of a pre-planned mala fide action.
3.23. Being aggrieved, the plaintiff challenged the memorandum dated 10.09.2010 passed by the defendants by filing Writ Petition (Civil) No. 3338/11 before the Hon'ble High Court of Delhi. The Hon'ble High Court of Delhi vide judgment dated 02.07.2013 found the memorandum to be illegal and allowed the writ petition and quashed the memorandum dated 10.09.2010 . The said judgment dated 02.07.2013 of the Hon'ble High Court has not been challenged by the defendants and has attained finality.
3.24. Thus, it stood established that the memo dated 28.04.2006 and the subsequent memo dated 10.09.2010 issued by the defendants levelling false and defamatory allegations against the plaintiff regarding the alleged time and cost overrun of the Namrup Revamp Projects of HFCL/BVFCL were illegal, incorrect and based on false allegations.
3.25. The memoranda had been deliberately issued by the defendants against the plaintiff to harass and defame him and the news of the said memorandums being CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 16 Of 80issued to the plaintiff had been widely circulated amongst the public at large and has come within the knowledge of the people who know the plaintiff personally and professionally.
3.26. The baseless allegations made against the plaintiff did not exist at all and were fabricated. Besides, the nature of the allegations was preposterous and any person having even a preliminary knowledge of project management and implementation would scoff at the frivolous nature of the same. The action taken by the defendants was out of malice, arrogance, vicious intentions and was a deliberate act to vilify the plaintiff. The following would show that the allegations against the plaintiff were false:
i. The cabinet Committee on economic affairs (CCEA) in its meeting held on 25-6-1998 decided that in every case where the project cost overrun is over 20% and is accompanied by time overrun of over 10% or such time and cost overrun norms as may be deemed appropriate by the Planning Commission for different types of projects, the revised cost estimated should be brought up for approval of the Cabinet committee on economic affairs only after responsibility is fixed for the cost and time overruns.CS No. 59152 of 2016
J Nehru Vs. D Banerjee & Ors.
Page No. 17 Of 80ii. In conformity with the above decision of CCEA, the Department of Fertilizers (DOF) constituted a standing committee on 19-8- 1998 for investigating time and cost overruns cases in the Ministry.
iii. The time and cost estimate of the Namrup project, originally approved by the cabinet in October '97, was based on the studies for the revival of HFCL plants conducted in 1994 by Fact Engineering and Design Organization (FEDO), a GOI undertaking, appointed by ICICI Bank- the Operating Agency for revival of HFCL. As the condition of the plants at Namrup had further deteriorated during the intervening period between '94 and Oct. '97 - a fresh study of the health of the plants at Namup was conducted after receiving the GOl approval in '97. PDIL (the foremost company in the public sector in the fertilizer field) was appointed as consultant on a turnkey basis, and thereafter the time schedule for implementation of Namrup Project started in Nov. 1998.
iv. As a result of fresh study of the plants and after considering factors to ensure stability of post revamp operations, the scope of work increased and so did the implementation cost CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 18 Of 80& time. The project cost increased from Rs. 350 cr to Rs. 525 Cr (50% increase) and the time from 30 to 39 months (30% increase) v. Approval of the Cabinet Committee on Economic Affairs (CCEA) was sought by the DOF- the Ministry of Chemicals and Fertilizers in May 2000 for revision in project cost and time as stated above. This was approved by the Cabinet in September 2001. The plaintiff retired in Jan. 2001.
vi. There was no default or delay or cost overrun on the part of HFCL. No fixing of responsibility for revision in time and cost was required or ever asked by anyone. This was recognized by the DOF, CCEA and all others connected with granting such approvals.
vii. That no need was felt to investigate any delay or cost overrun during the petitioners tenure or even till March 2003 i.e. nearly about two years and two months after his retirement as there was none. The Standing Committee started its 1st meeting in 3/2003 and completed the investigation in 8/2005.
viii. And this clearly proves that the project was running on time and there was no delay or cost CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 19 Of 80overrun at the time of demitting office by the plaintiff in Jan. 2001.
ix. The project was completed sometime in 2005 and the DOF had to seek approval from CCEA for increase in project cost and time that had been approved in sept. 2001. For this, the Standing Committee of DOF had to fix responsibility.
x. In the total implementation period of the project from Nov. 1998 till sometime in 2005, the association of the Plaintiff was only for a brief period from Nov. '98 to Jan. 2001. The Plaintiff had nothing to do with the cost or time overrun which occurred after he demitted office in Jan. 2001. Time & cost had already been approved by CCEA in Sept. 2001.
xi. Therefore, investigating the reasons for cost and time overrun against the plaintiff and not withdrawing the 'displeasure Memorandum' issued to him despite his repeated pleadings was deliberate and was done only with malicious intentions for harassing and defaming him after knowing fully well that the plaintiff had nothing to do with with the revision in cost after Sept. 2001.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 20 Of 80xii. That the DOF directed HFCL in Dec '99 to stop work due to increase in the cost of the project as a result of increase in the scope of work determined after fresh health study of the of plants. This was however allowed after April 2000 to the extent of Rs.350 Cr i.e. the original project cost approved by the Cabinet in 1997. Approval of the cabinet for the revised time and cost submitted in May 2000 was received in Sept. 2001. Nearly 9-12 months of project implementation time was lost due to this action of DOF. The Consultant i.e. PDIL in a written submission in March 2003 to the Secretary DOF, has listed this as one of the major factors which delayed the project.
xiii. The project got delayed after the Plaintiff left HFCL. Had the Board of Directors Resolution, requesting the Govt. for his continuation as C&MD of HFCL in the best interests of the project and the Corporation, been acted upon by the defendants, precious resources by way of cost and time overrun could have been saved. A number of CEOs were involved after the plaintiff's demitting office. Horses were changed mid stream against all directives of the Gol.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 21 Of 803.27. Though a considerable section of the people who came to know of the said memorandum refused to believe the allegations by the defendants on the plaintiff, however, there is also a substantial number of people who have considered the defamatory allegations of the defendants to be true. Though the order had not altered any service condition of the plaintiff nor has affected his post-retirement benefits, but it has certainly cast stigma on his otherwise illustrious career and has also effectively defamed him and blocked his future opportunities. Due to the aforesaid actions of the defendant, the plaintiff has been greatly injured in his credit and reputation and has been brought in contempt with the public and has suffered mental agony and humiliation. Securing further opportunities was also blocked.
3.28. The plaintiff had an unblemished reputation and had acquired a highly respected position in the society and in professional circles due to his dedication, sincerity and integrity in his personal and professional life. However, the defendants by their baseless, mala fide, defamatory and untrue allegations have hurt the reputation of the plaintiff and have lowered his standing in the society. The damage to his professional and personal reputation has been immediate and far-reaching. For the plaintiff, his professional and personal reputation is CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 22 Of 80his most valuable possession acquired during a long period of scrupulous, conscientious and diligent industry. The plaintiff has suffered harm and injury to his reputation due to the false and defamatory information spread by the defendants against the plaintiff and as such the plaintiff is claiming damages of Rs. 1 Crore.
4. On this basis, the plaintiff has filed the present suit seeking the following reliefs:
"a) Award damages of Rs. 1,00,00,000/- (Rupees One Crores only) in favor of the plaintiff and jointly and severally against the Defendants for the harm and injury caused to the reputation of the Plaintiff in the society and in personal and professional circle at large because of the defamatory actions of the defendant;
b) Cost of Suit
c) Pass such other and or further orders as this
Hon'ble Court may deem fit and proper in the facts of the case".
WRITTEN STATEMENT
5. Initially, only the defendants 1 to 9, who were the government officials, were arrayed as defendants in the suit. Subsequently, upon an application by the defendant CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 23 Of 80no.10 i.e. Union of India, the defendant no.10 was arrayed as a defendant in the suit vide order dated 24.07.2017.
6. The defendant no.10 has filed written statement which is titled as a written statement "on behalf of the defendants". It is stated in the written statement that the suit was not maintainable since the Ministry of Chemical & Fertilisers, Government of India had constituted a Committee to ascertain the reasons for cost and time overrun of Namrup Revamp Project under the superintendence of the plaintiff who was holding the position as CMD, Hindustan Fertiliser Corporation. The decision was taken in the aforesaid committee consisting of nine members i.e. the defendants no.1 to 9. Out of the nine members, six were from the Ministry of Chemical & Fertilizers and remaining three were from different departments/ministries. The defendants no. 1, 2, 5 and 9 were retired government officers. The decision was taken by the defendants nos. 1 to 9 on behalf of the Ministry of Chemicals and Fertilizers, being members of the committee. While issuing the memorandum of displeasure to the plaintiff, the defendants had considered all the facts of the case and had discharged their duties on behalf of the Ministry of Chemical and Fertilisers and as the suit of the plaintiff did not carry any substance of truth, the same was liable to be dismissed. The defendants no. 1 to 9 had worked in their official capacity, acted in a bona fide manner and in public interest while issuing the memorandum of displeasure and they had no personal enmity against the plaintiff. During the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 24 Of 80chairmanship of the plaintiff, the project was not completed within the timeline and due to such inordinate delay the government exchequer had suffered a huge financial loss, hence the claim of the plaintiff was not tenable. It is denied that the memo of displeasure was deliberately issued by the defendants against the plaintiff to harass or defame him or that the same was widely circulated among the public at large. It is further stated that the suit was barred by limitation. It is denied that any harm to the image, reputation or public esteem of the plaintiff was caused.
7. The defendant no.9 has also filed a written statement seeking dismissal of the suit.
8. No other defendant filed any written statement. Vide order dated 11.09.2015, the Hon'ble High Court of Delhi struck off the defence of the defendants no.1 to 8.
ISSUES
9. Vide order dated 13.04.2018, the following issues were framed in the suit:
"1. Whether the plaintiff is entitled for the decree of damages of Rs. 1,00,00,000/- against the defendants for causing harm and injury to the reputation of the plaintiff in the society and in personal and professional circle at large? OPP CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 25 Of 80
2. Whether defendant no.1 to 10 are jointly and severally liable to pay damages to the plaintiff? OPP
3. Whether suit filed by plaintiff discloses cause of action against the defendants? OPP
4. Whether suit of the plaintiff is barred by limitation? OPD
5. Whether the plaintiff is entitled for the costs of the suit? OPP
6. Relief."
DEFENDANTS NO. 2 AND 9 EXPIRED AND STOOD DELETED
10. As recorded in the order dated 31.01.2020, the defendant no.2 had already expired and stood deleted. As recorded in the order dated 26.05.2022, the defendant no.9 had also expired and stood deleted.
PLAINTIFF'S EVIDENCE
11. In support of his case, the plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence as Ex. PW1/A in which he has deposed along the lines of the plaint. He was cross-examined by the defendants. The plaintiff has relied upon the following documents:
1. Original copy of order dated 10.09.2010 as Ex.PW1/1.CS No. 59152 of 2016
J Nehru Vs. D Banerjee & Ors.
Page No. 26 Of 802. Copy of the memorandum from DOF dated 28.04.2019 as Ex.PW1/2. (OSR)
3. Copy of the letter from DOF dated 06.02.2008 as Ex.PW1/3 (OSR).
4. Copy of the letter from DOF dated 15.04.2009 as Ex.PW1/4 (OSR).
5. Copy of the appointment letter from DOF dated 30.06.1997 as Ex.PW1/5 (OSR).
6. Copy of letter from DOF dated 02.07.1998 as Ex.PW1/6 (OSR)
7. Copy of the objections/representations running from letter dated 14.5.2006 onwards as Ex.PW1/7, Ex.PW1/8, Ex.PW1/9, Ex.PW1/10, Ex.PW1/11, Ex.PW1/12, Ex.PW1/13, Ex.PW1/14, Ex.PW1/15.
8. Letters dated 12.09.2008 and 23.09.2008 , 22.10.2008 received from Dy. Secretary of the Department of Govt. of India Ex.PW1/16 and Ex.PW1/17 and Ex.PW1/18(OSR).
9. Letter dated 20.10.2008 Ex.PW1/19, letter dated 26.04.2009 Ex.PW1/20, letter dated 04.06.2009 Ex.PW1/21, letter dated 10.12.2008 received from Joint Secretary Sh. Satish Chandra, Appellate Authority is Mark A, letter dated 07.07.2009 from Dy. Secretary is Mark B, represenatation dated 17.11.2009 is Ex.PW1/23.
10. Certified copy of judgment dated 30.07.2010 of Hon'ble High Court of Delhi is Ex.PW1/24 (OSR).
11. Letter dated 16.08.2010 Mark C CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 27 Of 8012. My represenatation dated 24.08.2010 is Ex.PW1/26.
13. Copy of letter/application dated 22.10.2010 is Ex.PW1/27
14. Copy of letter dated 18.11.2010 Mark D
15. Copy of my letter dated 23.11.2010 Ex.PW1/30
16. Certified copy of judgment dated 02.07.2013 is Ex.PW1/31.
17. Copy of Commendation letter dated 03.12.1993 is Ex.PW1/32 (OSR).
18. Copy of Commendation letter dated 30.12.1993 is Ex.PW1/33(OSR).
19. Copy of Commendation letter dated 30.11.1993 is Ex.PW1/34(OSR).
20. Copy of Commendation letter dated 08.05.1995 is Ex.PW1/35(OSR).
21. Copy of Letter dated 22.10.2003 is Mark E
22. Copy of Minutes of meeting of the Board of Directors dated 15.12.2000 and 18.12.2000 is EX.PW1/37
23. Copy of Commendation letter dated 14.08.2002 is Mark F
24. Copy of Commendation letter dated 05.08.2002 is Mark G NO DEFENCE EVIDENCE LED
12. Vide order dated 15.12.2019, the affidavits in evidence filed by the defendant no.1 to 8 were taken off the record since their defence had already been struck off.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 28 Of 8013. The defendants no.9 and 10 did not lead any evidence.
14. Only the plaintiff and the defendants no. 5, 6, 8 and 10 participated at the time of final arguments. None appeared for the other defendants at the time of final arguments.
15. Ld. counsels for the plaintiff and the defendants nos. 5, 6, 8 and 10 have made their respective submissions. The parties have also filed their respective written submissions. The submissions made by the parties are discussed in the following paragraphs in the issue-wise findings.
16. I have considered the submissions of the Ld. Counsels for the parties and I have perused the record.
ISSUE-WISE FINDINGS
17. My Issue-wise findings are as follows.
Issue No.4- Whether suit of the plaintiff is barred by limitation? OPD
18. The onus to show that the suit was barred by limitation was upon the defendants.
19. Ld. counsels for the defendants have submitted that the suit is grossly barred by limitation. It is submitted that the present suit is essentially a suit for damages for defamation to which Article 75 of the Limitation Act, 1963 would apply and the period of limitation would be of one year from the date of the publishing of the defamatory CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 29 Of 80statement. It is submitted that the period of limitation would begin on 28.04.2006 when the first memorandum of displeasure was issued. It is submitted that even the best case of the plaintiff could only be that the limitation would start on 10.09.2010 when the second memorandum of displeasure was issued. It is submitted that even taking limitation of one year from 10.09.2010, the limitation period would end on 10.09.2011. It is submitted that the suit having been filed sometime in May 2014 was clearly barred by limitation.
20. Ld. counsels for the defendants have further submitted that even assuming that the suit would be covered under the residuary Article 113 of the Limitation Act and the period of limitation would thus be 3 years, even then the right to sue accrued to the plaintiff at best latest on 10.09.2010 and hence, the suit ought to have been filed within 3 years from 10.09.2010. It is submitted that the suit having been filed beyond 3 years from 10.09.2010 was clearly barred by limitation.
21. On the other hand, Ld. Counsel for the plaintiff has submitted that the plaintiff has in the present suit sought damages for redressal of injury to the plaintiff's reputation and for the pain, mental agony and loss caused to the plaintiff due the unwarranted memorandum of displeasure issued by the defendants which was illegal and invalid, and was so declared by the Hon'ble High Court in the writ proceedings. It is submitted that since the memorandum of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 30 Of 80displeasure dated 10.09.2010 was issued under the colour of official duty, the right to sue for damages arising from such illegal memo did not accrue to the plaintiff till the same was declared as illegal and set aside by the competent authority/Court. It is submitted that the plaintiff is seeking damages for the illegal and unwarranted acts of the defendants which constituted malice in law. It is submitted that the present case would be covered under Article 113 of the Limitation Act and the period of limitation was 3 years from the date when the right to sue accrued, which was on 02.07.2013 when the memorandum of displeasure dated 10.09.2010 was officially set aside by the Hon'ble High Court of Delhi in WP(C) No. 3883/2011. It is submitted that, hence, the suit having been filed on 09.05.2014, was well within the limitation. Ld. Counsel for the plaintiff has in this regard relied upon the decisions in N.N. Seth V. Union of India 1999 (49) DRJ 152 and Dr. Ajay Agarwal v. IBIN8 Media 2020 SCC Online Del 606 .
22. In rejoinder, Ld. Counsels for the defendants have submitted that the contention of the plaintiff that the time for limitation would start running from 02.07.2013 i.e. the date of decision of the Hon'ble High Court of Delhi in the writ petition setting aside the memo of displeasure dated 10.09.2010 was completely misplaced and erroneous. It is submitted that the decision in the writ petition could not be the starting point for running of the limitation period. It is submitted that the cause of action would be the act of the defendants which was only on 10.09.2010 and not CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 31 Of 80thereafter. It is submitted that the decision of the Hon'ble High Court on 02.07.2013, did not create any fresh cause of action for the purposes of limitation.
23. Ld. Counsels for the defendants have submitted that the cause of action for filing of the suit and right to sue could accrue to the plaintiff only upon some act done by the defendants and not otherwise. In this regard, ld. Counsels have relied upon Raghwendra Sharan Singh Vs. Ram Prasanna Singh (2020) 16 SCC 601. It is submitted that the act of the defendants which gave rise to the cause of action was latest on 10.09.2010 with the issuance of the second memo of displeasure, and that limitation would be counted from the said date. It is submitted that the order dated 02.07.2013 of the Hon'ble High Court was not an act of the defendants and hence, would not constitute a cause of action for filing the suit.
24. Ld. Counsels for the defendants have also referred to the various paragraphs of the plaint as well as the prayer clause of the suit and have submitted that the suit was a suit for defamation simpliciter and nothing more. It is submitted that the plaintiff was essentially seeking damages to the alleged harm caused to his reputation by the memorandum of displeasure which was alleged to be defamatory.
25. Ld. Counsels for the defendants have also submitted that the decision in N.N. Seth (supra), which has been relied CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 32 Of 80upon by the plaintiff, is distinguishable and that the said decision is not applicable to the facts of the present case. It is submitted that in N.N. Seth (supra), one of the defendants was the Lt. Governor, Delhi who had passed the final order dated 03.10.1985 setting aside the order of dismissal, and hence the last act of the defendants was on 03.10.1985 due to which it was held that the right to sue accrued to the plaintiff on 03.10.1985. It is submitted that in the present case, the memo of displeasure was set aside by the Court on 02.07.2013, and since, this was not an act of the defendants, the setting aside of the memo on 02.07.2013 would not give rise to any fresh cause of action or accrual to right to sue for the purposes of limitation.
26. In sur-rejoinder, ld. Counsel for the plaintiff has submitted that the suit was not a suit for defamation simpliciter as was contended by the defendants. It is reiterated that the suit was for damages caused due to the illegal and invalid memo of displeasure which amounted to 'malice in law'. It is submitted that the pleadings of the plaintiff in the plaint ought to be liberally construed and it is the substance of the pleadings which is to be seen. It is further submitted that when the parties were well aware of the pleas raised by the plaintiff in the plaint and have proceeded to trial on that basis, the substance of the pleadings is to be seen. It is submitted that the pleadings are not to be read in a pedantic manner but the substance thereof has to be construed liberally. In this regard, ld. Counsel has referred to the decision in Ram Sarup Gupta v. Bishun Narain Inter CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 33 Of 80College (1987) 2 SCC 555. It is submitted that when so construed, the suit is clearly a suit for damages for malice in law and is not a suit for defamation simpliciter.
27. I have considered the submissions of the parties.
28. For the point of limitation, it would be relevant to consider the nature of the suit. As per the title of the suit, the plaintiff has sought damages against the defendants for the harm and injury caused to the reputation of the plaintiff and the mental agony and hurt and damage to his future assignments/appointments due to the malicious and defamatory actions of the defendants. Upon a complete and holistic reading of the plaint, I find force in the submission of the learned counsel for the plaintiff that the suit is not a suit for defamation simpliciter but is a suit for damages caused to the plaintiff through an illegal and invalid order of the defendants. Although in the suit, the plaintiff has also averred that the memorandum of displeasure dated 10.09.2010 was defamatory in nature, however, the plaintiff has also clearly averred that the memorandum of displeasure was illegal and invalid, and that the plaintiff had suffered loss thereby. Admittedly, the legality of the memorandum of displeasure was also challenged by the plaintiff before the Hon'ble High Court and the same also came be set aside by the Hon'ble High Court, and all this has also been averred in the plaint. Hence, the contention of the plaintiff that the suit is not a suit for defamation simpliciter but is a suit for damages for CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 34 Of 80acts of the defendants which constitute malice in law is accepted. Consequently, Article 75 of the Limitation Act which deals with a case of slander would not apply. It is only the residuary Article 113 of the Limitation Act, which would apply in the present suit and the period of limitation would be 3 years from the date when the right to sue accrued.
29. It would be appropriate to refer to the decision in N.N. Seth (supra) which has been relied upon by the plaintiff. This was a case in which the plaintiff had filed a suit for damages for causing mental torture, harassment, loss of reputation and loss of promotion. The plaintiff had been dismissed from service by way of an order of dismissal which was subsequently set aside by the competent authority upon the plaintiff's representation. It was the case of the plaintiff that the cause of action was a continuing one. On the other hand, the defendant had set up a plea that the suit was barred by limitation. It would be appropriate to refer to the relevant paragraphs 1 to 6 in N.N. Seth (supra) in which the Hon'ble High Court has discussed the facts of the case and the arguments of the parties, as under:
"1. The present suit was instituted by the plaintiff against the defendants praying for a decree for damages. The plaintiff has sought for a decree for payment of Rs. 7 lac as damages for causing mental CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 35 Of 80
torture, harassment, loss of reputation and loss of promotion.
2. A departmental enquiry was conducted against the plaintiff and in pursuance thereof the plaintiff was dismissed from service and the order of dismissal was passed by the then DIG, Delhi Police vide order dated 18.9.1964. Being aggrieved by the aforesaid impugned order the plaintiff preferred an appeal to the then Inspector General of Police, who by order dated 27.9.1965 set aside the impugned order and remanded the case for conducting de novo enquiry. Pursuant to the denovo enquiry conducted against the plaintiff he was dismissed from service by the Inspector General of Police under Order dated 16.11.1965. Being aggrieved by the said dismissal order the plaintiff preferred a representation to the then Chief Commissioner of Delhi which was dismissed. Accordingly, the plaintiff preferred a writ petition in this court which was disposed of by this court setting aside the impugned order of dismissal on the ground that there was violation of the principles of natural justice in conducting the said enquiry. Thereafter the defendants conducted a second de novo enquiry against the plaintiff on completion of which the plaintiff was dismissed from service, against which he again preferred an appeal to the Inspector General of Police which was dismissed. The plaintiff CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 36 Of 80
preferred a review petition which was also dismissed by the then Inspector General of Police vide order dated 28.3.1998. The plaintiff, thereafter preferred a representation to the Inspector General of Police, Delhi, who accepted the said representation and set aside the order of dismissal on the technical ground that the plaintiff attained the age of superannuation in the year 1969 and his dismissal after the age of superannuation cannot be upheld. The said order was passed by the Lt. Governor of Delhi on 3.10.1985. Hence the plaintiff instituted the present suit seeking for the aforesaid reliefs. In paragraph 14 of the plaint the plaintiff has stated that on account of illegal, invalid and ab initio void orders of the then Inspector General of Police and the Lt. Governor of Delhi, plaintiff suffered humiliation, mental torture, loss of reputation and loss of promotion and therefore, he is entitled to damages as sought for in the suit.
3. The defendants No. 1 to 3 filed a written statement refuting the allegations made in the plaint and contending inter alia that the claim is time barred and that there is no cause of action to file the suit. The said defendants also filed an application in this court under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of the plaint on the ground that the suit is barred by limitation. The said application was registered as I.A. 600/1996. In the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 37 Of 80
said application it is stated that the final order in respect of the plaintiff was passed on 30.10.1985 by the Lt. Governor of Delhi accepting the representation of the plaintiff and setting aside the order of dismissal on technical ground that the plaintiff retired from service prior to the date of dismissal. The defendants have also stated that on the own showing of the plaintiff the cause of action for filing the present suit arose on 18.9.1964 and thereafter on 15.11.1965 and thereafter on 10.12.1976 and that the plaintiff has not given any other date as the basis which gives him the cause of action to file the suit. It is also stated in the said application that the cause of action for filing the suit at the most and could be said to have last arisen on
30.10.1985 and thereafter since the suit was instituted in 1990 the same is ex facie barred by limitation.
4. The said application was placed before me for arguments, on which I have heard the learned counsel appearing for the plaintiff as also the learned counsel for the defendants.
5. Counsel for the plaintiff, during the course of his arguments submitted that right to sue arose when the right is asserted through the present suit by filing the plaint which is denied by the defendants and therefore, for the present suit the period of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 38 Of 80limitation for filing the suit could be said to have arisen when the plaintiff has filed the present suit asserting his right for payment of damages. Counsel also submitted that cause of action in the present matter is of continuous nature and existed even on the date of filing of the present suit. In support of his submissions the learned counsel relied upon the decisions in lndumati Markandray Trivedi v. Jhala Umedsinhji Merubhabhai, AIR 1985 SC 369 and Hansraj Kooverji Rathor v. State of Orissa, AIR 1980 Orissa 184:
6. The aforesaid submission made on behalf of the plaintiff was refuted by the learned counsel appearing for the defendants who submitted that the suit is ex facie barred by limitation as the suit was filed only in the year 1990 when the last cause of action for filing the suit arose in the year 1985."
30. It is seen that the facts in N.N. Seth (supra) were that the plaintiff was dismissed from service vide order dated 18.09.1964, which order was subsequently set aside, and after de novo enquiry, the plaintiff was again dismissed from service vide order dated 16.11.1965, which was again set aside in a writ petition, and after a second de novo enquiry, the plaintiff was again dismissed and the review by the authority was also dismissed vide order dated 28.3.1998. Ultimately, the representation of the plaintiff was upheld by the Lt. Governor on 03.10.1985 and the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 39 Of 80
order of dismissal was set aside. The plaintiff filed the suit claiming that on account of illegal, invalid and ab initio void orders, the plaintiff suffered humiliation, mental torture, loss of reputation and loss of promotion and that therefore, he was entitled to damages. It was the case of the plaintiff that the cause of action of the plaintiff was a continuing one and was running even when the suit was filed, and as such the suit which was filed in 1990 was within limitation. On the other hand, it was the case of the defendant that the suit was ex facie barred by limitation as the suit was filed only in the year 1990 when the last cause of action for filing the suit arose in the year 1985.
31. The Hon'ble High Court in paragraphs 7 and 8 in the decision in N.N. Seth (supra) proceeded to hold as under:
"7. The plaintiff has filed the suit seeking for a decree for payment of Rs. 7 lac as damages for causing mental torture, harassment, loss of reputation and promotion to the plaintiff. The order of dismissal passed against the plaintiff was set aside by the Inspector General of Police, Delhi on 3.10.1985, by accepting the representation filed by the plaintiff. Subsequent to the aforesaid order the plaintiff was paid all his back wages and there is no claim of the plaintiff raised in the present suit in respect of the same. Thus the present suit is a pure and simple suit seeking for damages which is governed by the provisions of Article 113 of the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 40 Of 80
Limitation Act which is a residuary provision. Under Article 113 of the Limitation Act, the period of limitation for filing a suit has been prescribed as 3 years from the date the right to sue accrues and the said provision applies to suits to which no other article in the schedule applies. Thus Article 113 is a residuary article for suits not covered by any other article. The starting point of limitation under Article 113 runs from the date when the right to sue accrues. The words 'right to sue' mean a right to seek relief i.e. a right to prosecute by law, to seek relief by means of legal procedure. The plaintiff has sought for a decree for payment of damages for causing mental torture, harassment, loss of reputation and loss of promotion, which according to him was caused by the illegal, invalid and ab initio void orders issued by the Inspector General of Police and the Lt. Governor, Delhi. The said orders as stated by the plaintiff himself in paragraph 16 were issued on 18.9.1964, 15.12.1965 and 10.12.1976. During the course of his submission the learned counsel for the plaintiff submitted that the cause of action although initially arose on 18.9.1964, in the present suit the same was a continuing one. The said submission of the learned counsel appears to have some force for, so long the orders of dismissal passed against him were not set aside by a competent authority the order of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 41 Of 80
dismissal could not have been said to be illegal, invalid and void ab initio. The cause of action therefore, was a continuous one till the final order was passed by the Lt. Governor accepting his representation whereby he set aside the order of dismissed passed against the plaintiff. Thus the continuing cause of action came to a closure with the passing of the order dated 30.10.1985 when the limitation started to run for seeking relief by legal means claiming the damages. The cause of action, therefore, cannot continue after 30.10.1985 and computing the period of limitation from that date the suit, if any, for the relief aforesaid should have been filed by the plaintiff on or before 30.10.1988. The present suit however, came to be filed by the plaintiff only on 24.7.1990 which ex facie was instituted beyond the period of limitation prescribed for the purpose. The suit, therefore, is barred by limitation, having been instituted beyond the period of 3 years from 31.10.1985.
8. In that view of the matter the plaint filed by the plaintiff is liable to be rejected being barred by limitation. The application stands allowed and the suit is held to be barred by limitation. Consequently, the plaint filed by the plaintiff stands rejected. However, in the facts and circumstances of the case there shall be no order as to costs."CS No. 59152 of 2016
J Nehru Vs. D Banerjee & Ors.
Page No. 42 Of 80(Emphasis supplied by me)
32. Thus, it is seen from the decision in N.N. Seth (supra), that the plaintiff had contended that though the cause of action initially arose on 18.09.1964, the cause of action was continuing in nature. The Hon'ble High Court observed that there was force in the submission of the plaintiff that the cause of action was a continuous one for so long the orders of dismissal passed against him were not set aside by a competent authority, the order of dismissal could not have been said to be illegal, invalid and void ab initio. The Hon'ble High Court, however, held that the continuing cause of action came to a closure with the passing of the final order dated 30.10.1985 by the authority accepting the representation of the plaintiff whereby the order of dismissal passed against the plaintiff was set aside. The Hon'ble High Court further held that with the passing of the final order setting aside the order of dismissal, the limitation started to run for seeking relief by legal means claiming damages. On this basis, it was held that the suit for damages ought to have been filed within 3 years from 30.10.1985.
33. The ratio which can be deduced from N.N. Seth (supra) is that in the case of an illegal, invalid and void order, the limitation for a suit for damages caused due to such an order would be a continuing one till the order is ultimately set aside by a competent authority. Such a suit would be governed under Article 113 of the Limitation Act and the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 43 Of 80right to sue would accrue on the date of the final order setting aside the illegal order.
34. In my view, the ratio in N.N. Seth (supra) would apply to the present case. Just as in N.N. Seth (supra) where the plaintiff had filed the suit for damages arising out of certain orders which were set aside as illegal and invalid, even in the present suit, the plaintiff is seeking damages caused due to the memo of displeasure which has been held to be illegal and invalid. The contention of the defendants that the decision in N.N. Seth (supra) was distinguishable since in that case the concerned order was set aside by the defendant authority itself, whereas in the present case the subject memo was set aside by the Court, is really without substance. It would not matter whether the impugned order was set aside by the defendant authority itself or by the Court. Ultimately, what the Hon'ble High Court holds in N.N. Seth (supra) is that the impugned order could not be said to be illegal or invalid until it was set aside and that till it was set aside the cause of action was continuous and it ceased to be continuous on the date on which it was set aside and this gave the plaintiff the right to sue for damages arising from the invalid and illegal order which was ultimately set aside.
35. In the present case, after the first memorandum of displeasure dated 28.04.2006 was issued to the plaintiff, the plaintiff had approached the Hon'ble High Court in a writ petition and the first memorandum of displeasure was CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 44 Of 80set aside with directions to give opportunity of hearing to the plaintiff. The second memorandum of displeasure dated 10.09.2010 was thereafter issued. The plaintiff again challenged the legality and validity of the second memo dated 10.09.2010 vide another writ petition, which challenge was also successful and the second memo of displeasure was set aside by the Hon'ble High Court vide order dated 02.07.2013. The defendant no.1 Union of India did not challenge the said decision and the same attained finality. Thus, it is seen that the plaintiff had pursued the remedies available to him under the law against the memo dated 10.09.2010 and ultimately, the memo was set aside as invalid and illegal by the Hon'ble High Court vide order dated 02.07.2013.
36. Following the ratio in N.N. Seth (supra), the right to sue to the plaintiff for damages in the present case in respect of the memo of displeasure dated 10.09.2010 accrued only on 02.07.2013 when the memo was set aside by the Hon'ble High Court. Article 113 would govern the present case and the limitation period would be 3 years from 02.07.2013. The suit having been filed in May 2014 is, hence, clearly within limitation.
37. Accordingly, the Issue No.1 is decided in favour of the plaintiff and against the defendants.
Issue No.1- Whether the plaintiff is entitled for the decree of damages of Rs. 1,00,00,000/- against the defendants for causing harm and injury to the reputation CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 45 Of 80of the plaintiff in the society and in personal and professional circle at large? OPP Issue No.2- Whether defendant no.1 to 10 are jointly and severally liable to pay damages to the plaintiff? OPP Issue No.3- Whether suit filed by plaintiff discloses cause of action against the defendants? OPP
38. The aforesaid issues are taken up for discussion together.
39. Ld. Counsel for the plaintiff has submitted that the plaintiff has filed the present suit for damages to the plaintiff caused due to the illegal acts of the defendants which constitute 'malice in law', and due to the memo of displeasure which was illegal and invalid and was declared so by the Hon'ble High Court. It is submitted that as such, the suit clearly discloses cause of action against the defendants.
40. Ld. Counsel for the plaintiff has further submitted that the action of the defendants amounted to 'malice in law' since the memo of displeasure was unauthorised by law. It is submitted that the memorandum of displeasure amounted to a gross abuse of legal power since the defendants had sought to use a rule for a purpose and in a manner for which it was not warranted. It is submitted that in the present case the defendants had sought to use the provisions of the vigilance manual for action against a retired person which was gross abuse of legal power. It is submitted that the vigilance manual applied only to serving officers and could not have been used to issue the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 46 Of 80memorandum of displeasure in respect of the plaintiff who was a retired officer. It is further submitted that the defendants had exercised discretionary power for an unauthorised purpose. It is submitted that the action of the Standing Committee in the instant case to conduct an inquiry against what the CCEA had already done was beyond the mandate of the scope of enquiry. It is submitted that the first approval by Cabinet Committee on Economic affairs was already there in 2001 and thereafter the plaintiff had retired in January, 2001. It is submitted that with respect to the second approval, it was not within the scope of the Standing Committee to go into the first approval in respect of which the matter had already been approved by the CCEA. It is submitted that as such this was a case of exercise of discretionary power for an unauthorised purpose. It is submitted that a fair opportunity of hearing was denied to the plaintiff prior to the passing of the memorandum of displeasure. It is further submitted that the actions of the defendants were without authority of law as the memorandum of displeasure was issued to a retired officer without any statutory authority. It is further submitted that the decision was taken by the defendants on non-existent facts as there was no material against the plaintiff before the Standing Committee. It is further submitted that the defendants had failed to show that there was any public interest in issuance of the memorandum of displeasure to the plaintiff after 6 years of his retirement.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 47 Of 8041. The learned Counsel for the plaintiff has submitted that when there was infliction of injury when the officials had acted without authority of law, then this was a case of 'malice in law', and the plea of absence of any motive, hatred, ill-will or innocent mind would be immaterial and irrelevant. In this regard, learned counsel has relied upon the decision in S.R. Venkatraman v. Union of India (1979) 2 SCC 491.
42. It is further submitted that the defendants cannot seek to justify the memorandum of displeasure on merits in the present suit in as much as the same was already set aside by the Hon'ble High Court of Delhi in the writ proceedings. It is further submitted that the setting aside of the memorandum of displeasure had attained finality and the defendants could not seek to justify the same on merits in the present suit and the matter was res judicata. In this regard, ld. Counsel for the plaintiff has relied upon the decision in Gulabchand Chhotalal Parikh Vs. State of Gujrat AIR 965 SC 1358.
43. It is further submitted that the plaintiff had an excellent record in service, had vast experience and enjoyed high reputation in his filed. It is submitted that due to the impugned memorandum of displeasure, the reputation of the plaintiff was harmed. It is submitted that the memorandum of displeasure stated that it constituted an adverse entry and was kept on the character role of the plaintiff. It is submitted that the memo of displeasure cast CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 48 Of 80aspersions on the competence and integrity of the plaintiff, due to which the plaintiff lost his reputation which was earned through decades of hard work. It is submitted that the memorandum of displeasure was published by the defendants to the plaintiff's peers and various other ministries and departments and as such had caused serious blot to the plaintiff's reputation. Ld. Counsel for the plaintiff has submitted that the honour and reputation of a person is something which is to be jealously guarded. In this regard, learned Counsel for the plaintiff has referred to the decisions in Ram Jethmalani v. Subramaniam Swamy 2006 (87) DRJ 603, and Lt. Gen. P.K. Rath (Retd.) v. Union of India 2014 SCC OnLine AFT 628. It is further submitted that when there is injury to the reputation of a person, substantial damages ought to be granted by the Court. In this regard, reliance is placed upon Sreedharamurthy v. Bellary Municipal Council ILR 1982 KAR 252.
44. It is further submitted that in the instant case by blocking opportunities of the plaintiff, the defendants have put it out of the plaintiff's power to prove the actual damages with precision. It is submitted that where the defendants have by their own wrong put it out of the plaintiff's power to prove the quantum of damages exactly, the presumption is against the defendant and the burden is upon the defendant to reduce the amount from the highest possible estimate. In this regard, ld. Counsel has referred to the decision in F.T. Kingsley v. Secretary of State for India CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 49 Of 80MANU/WB/0258/1922 and Andard Mount (London) Ltd. v. Curewel (India) Ltd. AIR 1985 Del 45. It is submitted that the defendants have failed to discharge the burden to reduce the amount from the amount of damages claimed in the suit and as such, the plaintiff would be entitled to the damages claimed of Rs. 1 Crore.
45. It is further submitted that the present case was good case where along with the general damages, aggravated damages must also be awarded to the plaintiff to compensate for the loss of reputation, loss of income, loss of opportunities, mental agony and harassment caused. In this regard, ld. Counsel has referred to the decision in Rustam K Karanjia v. Krishnaraj M.D. Thackersey AIR 1970 Bom 424.
46. Ld. counsel for the plaintiff has also referred to an office memorandum dated 17.09.2019 bearing no. W- 02/35/2019-DPE(WC)-GLXIX/19 published by the Department of Public Enterprise, Ministry of Wealth Industries and Public Enterprise, Government of India and has submitted that the emoluments of a person holding the plaintiff's position was Rs.3,20,000/- basic pay per month with other facilities. It is submitted that this office memorandum had the force of law and the Court could take judicial notice of the same under section 57 of the Indian Evidence Act. It is submitted that measure of loss of income to the plaintiff must be commensurate with the position he held at he time of retirement.
CS No. 59152 of 2016J Nehru Vs. D Banerjee & Ors.
Page No. 50 Of 8047. It is further submitted that although the measure of the damages with absolute precision was not possible, however, such difficulty would not be a good defence for payment of adequate damages which would fairly compensate the plaintiff for the loss since there was a reasonable presumption as to the estimated damages caused to the plaintiff. It is submitted that damages claimed of Rs. 1 Crore was a reasonable estimate of the loss caused to the plaintiff and the plaintiff would be entitled to the amount of damages claimed in the suit.
48. It is further submitted that the defendant no. 10 Union of India was liable, jointly and severally, with the other defendant who were its agents.
49. On the other hand, the learned counsels of the defendants have reiterated that the suit was essentially for defamation only. It is submitted that there were two elements of defamation i.e. public communication and injury to reputation, both of which elements were missing in the present case.
50. It is further submitted that the memorandum of displeasure was based on the factual position and the report of the standing committee and the plaintiff has failed to rebut the same. It is submitted that the findings of the standing committee could not be disputed by the plaintiff and that when the memorandum of displeasure were based on the findings of the standing committee, the plaintiff could not CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 51 Of 80claim damages on the basis of the same. It is submitted that when the memorandum of displeasure was based on the truth, no suit for defamation would lie.
51. It is further submitted that there was no publication of the memorandum of displeasure and the same was only communicated personally to the plaintiff. It is submitted that since there was no publication, there was no question of defamation.
52. It is further submitted that since the plaintiff was earlier an employee of the defendant no. 10 i.e. Union of India of and the memorandum of displeasure was in respect of his acts/omissions at the time when he was an employee of the defendant no.10, a suit for damages for defamation would not lie.
53. It is further submitted that the suit was barred by the principles of res judicata as the plaintiff had raised the issue of legality and validity of the memo of displeasure in W.P. (C) No. 3887/11 which was already decided in favour of the plaintiff and the memorandum of displeasure had already been set aside. It is submitted that the plaintiff did not take any liberty from the Hon'ble High Court for filing the present suit.
54. It is submitted that the plaintiff never issued any notice under section 80 of the CPC which was mandatory for filing the suit against the government as well as against the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 52 Of 80public officials. In this regard, ld. Counsels have relied upon the decision in State of Maharashtra Vs. Sh. Chandra Kant (2014) 12 SCC 696.
55. It is further submitted that in so far as the defendants nos. 1 to 9 are concerned, they were working in their official capacities and as such would not be liable. It is submitted that the plaintiff has failed to prove the allegations of mala fides and conspiracy which were frivolous.
56. I have considered the submissions of the the parties.
57. I have already held in the foregoing paragraphs in the discussion on the Issue No.4 that the suit is essentially a suit for damages for the loss and injury caused to the plaintiff by the illegal and invalid memorandum of displeasure, and is not a suit for defamation simpliciter. The suit clearly discloses cause of action against the defendants.
58. A perusal of the written statement of the defendant no.10 Union of India shows that the objection as to notice u/s. 80 CPC was not raised therein, and as such this objection is deemed to have been waived. The defence of the defendants nos. 1 to 8 was struck off and there is no written statement filed by them and as such, there was never any objection taken even by these defendants regarding any notice u/s. 80 CPC. In so far as the defendant no.9 is concerned, he had already expired during CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 53 Of 80the course of the suit and stands deleted. Thus, the defendants cannot now raise any objection as to there being no notice u/s. 80 CPC.
59. I also do not find any merit in the submission of the ld.
Counsels for the defendants that the suit was barred by the principles of res judicata merely because the issue of legality and validity of the memo of displeasure was already decided in favour of the plaintiff and the memorandum of displeasure had already been set aside in the writ proceedings. The second round of writ proceedings were launched by the plaintiff for setting aside of the impugned memo of displeasure and the same came to be set aside. In the present suit, the plaintiff is seeking damages for the illegal and invalid memo which was ultimately set aside. I do not see how the writ proceedings for setting aside of the memo could constitute a bar of res judicata for the suit for damages. Rather, it is only when the writ proceedings ended in favour of the plaintiff and the memo of displeasure was set aside vide the order dated 02.07.2013 that the plaintiff gained the right to sue for damages in respect of the illegal memo.
60. The memorandum of displeasure dated 10.09.2010 was undisputedly set aside by the Hon'ble High Court vide judgment dated 02.07.2013 passed in the second round of writ proceedings. It would be appropriate to refer to the judgment dated 02.07.2013 of the Hon'ble High Court in W.P.(C) No. 3883/2011 to understand the reasons for CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 54 Of 80setting aside of the memo of displeasure. The relevant portion of the aforesaid judgment dated 02.07.2013 is extracted, as under:
"REASONS
12. Having heard the learned counsels for the parties and perused the record, in my view, two issues arises for consideration of this court. First, as to whether there has been breach of principles of natural justice in the conduct of the proceedings before the Secretary (Fertilizers), GOI pursuant to the directions issued by this court vide order dated 30.07.2010. Second, as to whether the respondent could have issued a Memo of displeasure to the petitioner after he had demitted office.
12.1 On the merits of the case, which concerns the conclusions arrived at by the Standing Committee, all that one can say is that, the petitioner in his defence, as is evident from the representations, made to the respondent from time to time (a reference to which I have made above); had a lot to say. Whether, finally the Standing Committee, would have been persuaded by the explanations rendered by the petitioner would remain a moot point.
12.2 In this background, if, however, I were to come to a conclusion, based on the record, that the petitioner was not noticed and therefore, given an CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 55 Of 80
opportunity to explain himself by the Standing Committee, the impugned order would have to be set aside. On the other hand, if I were to come to the conclusion that the petitioner was given an opportunity to appear before the Standing Committee and he chose not to avail of the said opportunity, then nothing would turn on what the petitioner had to say on merits. Either way, therefore, I would not examine the worthiness of the defence raised by the petitioner as regards the merits of the case, as while, exercising powers under Article 226 of the Constitution (as stated right at the beginning of my discussion), the court is concerned with the decision taking process and not with the decision itself. (See ______) 12.3 The petitioner has categorically stated that no notice was issued to him by the Standing Committee. The respondent had merely relied upon a statement in the second (2nd) paragraph of the Standing Committee report, which is suggestive of the fact that notices were issued to concerned parties which, inter alia, included the CMD of BVFCL. The said paragraph also records that, not only the concerned parties were heard, but that they were also given an opportunity to submit their reports. It is not in dispute that the petitioner superannuated from the post of CMD on, 31.01.2001. It also, cannot be disputed by the respondent that, even though the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 56 Of 80
Standing Committee was constituted on 19.08.1998, its first meeting was held on 17.03.2003. The last aspect emerges from the respondent's letter dated 12.09.2008, issued to the petitioner. The respondent has brought nothing on record to show, apart from what is stated above, that a notice was issued to the petitioner with regard to hearing held by the Standing Committee. This aspect is clearly borne out, on a perusal of paragraphs 11 and 12 of the note of the Dy. Secretary, GOI dated 10.08.2010. Pertinently, the Dy. Secretary after recording in paragraph 11 of his note what is stated in paragraph 2 of the Standing Committee's Report, in paragraph 12 of the very same note, he records as follows : -
"..Apart from the above certification by the Standing Committee, we have no other record to verify whether Shri Nehru was actually given a written communication to attend the proceedings and explain his part..."
12.4 Even though the Dy. Secretary's records the fact that there is nothing to show that the petitioner was served, apart from the assertion in paragraph two (2) of the Standing Committee's Report, he curiously goes on to state that there is no reason to doubt the veracity of the statement made in the report of the Standing Committee. The question, CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 57 Of 80which the respondent had to answer was not whether the Standing Committee initiated a process of noticing parties who were likely to be affected by their findings but that whether the petitioner factually had been served with a notice apparently issued by the Standing Committee.
12.5 It is obvious that the Standing Committee heard, if at all, the then CMD of BVFCL. There was thus, a breach of natural justice, which is why, this court vide its order dated 30.07.2010 had directed that the petitioner be heard by the Secretary (Fertilizers).
12.6 At that stage, this court had directed that the petitioner be supplied with the relevant material based on which the Standing Committee had concluded that the petitioner, amongst others, was responsible for cost and time overruns. As has been correctly submitted by the petitioner, the Standing Committee's Report was already on record of this court forming subject matter of WP (C) 3883/2010, and therefore, the court while issuing a direction that relevant material should be supplied to the petitioner had in mind the base documents which formed the edifice of the report.
12.7 The note of the Dy. Secretary dated 10.08.2010, whereby he recommended that displeasure Memo issued qua the petitioner, ought CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 58 Of 80not to be withdrawn, also notes the fact that, apart from the Standing Committee Report, no other material had been supplied to the petitioner as none was available with the respondent. The relevant assertion made in paragraph 8 of the Dy. Secretary's note of 10.08.2008 eloquently conveys this point:
"...When he visited this Department on 06.08.2010 we have not given any document/material to him on the basis of which the Memo dated 28.04.2006 was issued to him. It is also pertinent to point out here that on record we have only the report of the Standing Committee as relevant material on the basis of which the memo was issued to him conveying displeasure..."
12.8 On a query being put by me, to Mr. Jatan Singh, as to whether the petitioner had been given the primary documents at the time when hearing was held before the Secretary (Fertilizers) based on which the Standing Committee had returned its findings, he drew my attention to the various annexures appended to the said report. A perusal of those annexures would show that the said annexures are only tabulated charts of information collated from primary documents. The primary documents admittedly were not made available to the petitioner. These very annexures alongwith the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 59 Of 80report were available with this court when it passed the order dated 30.07.2010. In my opinion, therefore, both at that stage and now, there has been a failure on the part of the respondent to supply the material which formed the basis of the conclusion reached by the Standing Committee. It cannot be the case of the respondent that the said material was not available as the Committee clearly records in the very same paragraph, on which reliance is placed by the respondent i.e., paragraph 2(iii) of the report, that the Committee in coming to the conclusion, which it did, strictly depended on the records available.
12.9 Thus, in my view, the petitioner is right in contending that, having been denied access to the primary documents, which were in the power and possession of the Standing Committee, based on which, conclusions were arrived at, which were inimical to the interest of the petitioner, his right of fair hearing has been compromised. Therefore, the first issue would have to be necessarily, decided in favour of the petitioner and against the respondent.
13. In so far as the second issue is concerned, it may be relevant to extract paragraph 4 of Chapter X of the Vigilance Manual on which the respondent seeks to rely, to sustain the source of its power to issue a memo of displeasure to the petitioner even CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 60 Of 80after he had admittedly demitted office. The relevant paragraph reads as follows : -
"...On occasions, an officer may be found to have committed an irregularity or lapse of a character which though not considered serious enough to warrant action being taken for the imposition of a formal penalty or even for the administration of a warning but the irregularity or lapse is such that it may be considered necessary to convey to the officer concerned the sense of displeasure over it. Such displeasure is usually communicated in the form of a letter and a copy of it may, if so decided, be placed on the character roll of the officer in the manner indicated in para 3.2 for placing a copy of the warning on the CRs. Where a copy of the letter communicating the "Displeasure of the Government" is kept in the character roll of the officer, it will constitute an adverse entry and the officer concerned will have the right to represent against the same in accordance with the existing instructions relating to communication of adverse remarks in Confidential Reports and consideration of representations against them.." (emphasis is mine) CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 61 Of 80
13.1 A perusal of the aforementioned paragraph would show that, it applies to a serving officer. A close reading of paragraph 4 would show that there is intrinsic evidence to that effect. It is because the provisions contained in paragraph 4 apply to a serving officer that, it vests, the concerned authority, with a discretion to have the same placed in the character roll of the officer. In the event, it is placed in the character roll of the officer concerned, it is to be construed as an adverse entry, against which, the delinquent officer, would have to be given a right to make a representation.
14. In these circumstances, I am of the opinion that the respondent could not have issued a memo of displeasure to the petitioner post his superannuation. Mr. Jatan Singh has failed to point to any other rule or provision which empowered the respondent to continue the enquiry post the petitioner's retirement. From the facts, as they have emerged in the present proceedings, even though the Standing Committee of DOF was constituted on 19.08.1998, its first meeting was held only on 17.03.2003, when the petitioner had already retired from the service.
14.1 The legal rationale for discontinuation of an enquiry vis-à-vis an employee who has superannuated is that : master and servant CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 62 Of 80relationship comes to an end, on an employee demitting office. Therefore, no disciplinary action could have been taken against the petitioner unless Service Rules provided for such a contingency. [See judgment dated 21.10.2010, passed in WP (C) 17221-22/2004 in the case titled : Union of India v. S.K. Mathur Also see judgment of the Supreme Court in the case of Chandra Singh v. State of Rajasthan, (2003) 6 SCC 545].
14.2 Thus, in my opinion, the second issue will also have to be decided in favour of the petitioner and against the respondent. It is ordered accordingly.
15. In view of the discussion above, I am of the opinion that the writ petition would have to be allowed and the impugned order set aside. It is ordered accordingly."
(Emphasis supplied by me)
61. It is seen from the judgment dated 02.07.2013 of the Hon'ble High Court that the memo of displeasure was set aside by the Hon'ble High Court for two reasons. The Hon'ble High Court found that, firstly, the plaintiff's right to a fair hearing had been compromised since there was a failure to provide the plaintiff with the primary documents forming the basis of the conclusions of the Standing Committee's report which was the basis of the memo of displeasure. Secondly, it was held that the memo of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 63 Of 80displeasure which was purported to have been issued under the Vigilance Manual could not have been issued since the plaintiff had already retired and there was no provision with empowered the defendant no.1 to continue any enquiry against the plaintiff after he had retired. On this twin basis, the memo of displeasure was found to be illegal and invalid and was, accordingly, set aside by the Hon'ble High Court. The judgment of the Hon'ble High Court was not challenged by the defendant no.1 and the same has attained finality.
62. Once the judgment dated 02.07.2013 of the Hon'ble High Court setting aside the memo of displeasure as illegal and invalid has attained finality, the defendants cannot now in the suit be permitted to defend the legality and validity of the memo of displeasure. There would be an estoppel by judgment which would bar the defendants from pleading or proving the legality or validity of the memo of displeasure dated 10.09.2010.
63. Furthermore, even in so far as the defendants have sought to defend the memo of displeasure by contending that the same was based on the report of the Standing Committee and was based on the factual position, this contention also deserves to be rejected. As already observed by the Hon'ble High Court of Delhi in its judgment dated 02.07.2013 in W.P.(C) No. 3883/2011, the plaintiff was never given an opportunity to present his version by the Standing Committee. It was for this reason that in the first CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 64 Of 80round of the writ proceedings in W.P.(C) No.3883/2010, the Hon'ble High Court had set aside the first memo of displeasure and had directed the government to provide the materials forming the basis of the Report of the Standing Committee to the plaintiff and to give opportunity of hearing to the plaintiff. The Hon'ble High Court has in its judgment dated 02.07.2013 in W.P.(C) No. 3883/2011, particularly at paragraph 12.6, observed that as the Standing Committee's report was already on the record of the Court in W.P.(C) No. 3883/2010, therefore, the Court while issuing the direction that relevant material should be supplied to the plaintiff had in mind the base documents which formed the edifice of the report. The Hon'ble High Court has in its judgment dated 02.07.2013, at paragraph 12.7, also noticed the note of the Dy. Secretary dated 10.08.2010 recommending that the displeasure memo ought not to be withdrawn, in which it is noted that apart from the Standing Committee Report, no other material was supplied to the plaintiff as none was available with the defendant. The Hon'ble High Court goes on to observe in paragraph 12.8 of the judgment dated 02.07.2013 that the primary documents forming the basis of the Standing Committee Report were not made available to the plaintiff. The Hon'ble High Court observes that, therefore, there had been a failure on the part of the defendant to supply the material which formed the basis of the conclusion reached by the Standing Committee. The Hon'ble High Court also observes in paragraph 12.8 that it could not be the case of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 65 Of 80the defendant that the material was not available as the committee clearly recorded that the committee was coming to the conclusion is which it did strictly on the records available. The Hon'ble High Court concluded in paragraph 12.9 of its judgment dated 02.07.2013 that the plaintiff was right in contending that having been denied access to the primary documents which were in the power in possession of the standing committee based on which the conclusions were arrived at which were inimical to the interest of the plaintiff, his right or fair hearing had been compromised. In light of these findings, the defendants cannot now defend the memo of displeasure on the basis that the same was based on the report of the Standing Committee.
64. Moreover, the second ground for holding the memo of displeasure to be invalid by the Hon'ble High Court was that the same was not authorised by the relevant rules which were relied upon by the defendants. Hence, the issuance of the memo of displeasure was wholly without jurisdiction since the plaintiff had already retired in January 2001. This being the position, the defendants cannot now contend in the suit that the issuance of the memo of displeasure was valid and legal.
65. The submission of the plaintiff that the act of the defendants in issuing the memo of displeasure constituted malice in law has considerable force. The issuance of the memo of displeasure was done in violation of the right of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 66 Of 80the plaintiff to a fair hearing, even after the specific directions of the Hon'ble High Court in the first round of writ proceedings. The plaintiff was not provided the primary documents/material which formed the basis of the report of the Standing Committee which was relied upon in the memo of displeasure. As held by the Hon'ble High Court in its judgment dated 02.07.2013, the plaintiff was denied opportunity of a fair hearing. Furthermore, the memo of displeasure was clearly unauthorised, as already held by the Hon'ble High Court, since the same was issued de hors the relevant rules and regulations. The plaintiff having already retired, the defendants could not have had any enquiry proceedings against the plaintiff in the absence of any rules to this effect. Thus, the act of the defendants in issuing the memo of displeasure to the plaintiff constituted malice in law. As rightly contended by the learned counsel for the plaintiff, once the malice in law stood proved, it was immaterial if the defendants did not have any ill motive, ill will or mala fides.
66. The defendants having issued the memo of displeasure to the plaintiff which was illegal and invalid in law and which constituted malice in law, clearly, the plaintiff suffered legal injury and, as such, the plaintiff would be entitled to damages.
67. Before going to the question of quantum of damages, I would deal with the question as to whether the liability for damages would be of the defendant no.10 i.e. Union of CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 67 Of 80India only, or would the other defendants also be jointly and severally liable along with the defendant no.10.
68. I would hold that the other defendants apart from the defendant no. 10 (Union of India) cannot be made personally liable. The own case of the plaintiff as argued by the ld. Counsel for the plaintiff is based on the principle of malice in law. It is the submission of the ld. Counsel for the plaintiff that since the impugned memo of displeasure was unauthorised by the rules and was issued contrary to the principles of fair hearing and contrary to the directions of the Hon'ble High Court in the first round of writ proceedings, the actions of the defendants constituted malice in law. It has been the submission of the ld. Counsel for the plaintiff that since there was malice in law, actual mala fides, motives or ill intention became immaterial. It is on this basis that the plaintiff has premised its arguments. The contention of the plaintiff that the actions of the defendants constituted malice in law has been accepted. The plaintiff having himself premised his arguments on the basis that the plaintiff was entitled to damages on the principle of malice in law in which the mala fides, ill intention or motives become immaterial and irrelevant, I would hold that the other defendants who were acting in their official capacity as agents of the defendant no.10 cannot be made personally liable without any mala fides having been proved on their part. Hence, it is only the principal i.e. the defendant no.10 (Union of India) who would be liable for the damages and not its CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 68 Of 80agents who were acting in their official capacity and in discharge of their official functions.
69. Accordingly, it is held that the liability for damages would be of the defendant no.10 only.
70. Now, coming to the question of quantum of damages.
71. The plaintiff has sought damages of Rs. 1 Crore in the suit on the basis that the actions of the defendants had caused harm and injury to the reputation of the plaintiff and had caused him mental agony and hurt and had also damaged his prospect for future assignments/appointments.
72. It would be appropriate to consider what was the nature of allegations made in the memoranda of displeasure.
73. The first memorandum of displeasure dated 28.04.2006 is extracted hereunder:
"A standing Committee of Department of Fertilizers was constituted to fix responsibility for time and cost overrun of Namrup Revamp Project of BVFCL. The Committee in its report fixed responsibility for time and cost overrun inter alia on Shri J.L. Nehru, Ex- CMD, Hindustran Fertilizers Corporation Limited (HFC). The committee found that-
(a) He did not properly guided the Department on issues relating to handling of project and as a result CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.Page No. 69 Of 80
the company went ahead with the implementation of Revamp Project without getting even a Detailed Project Report (DPR);
(b) An end to end health survey of the plant was not done as a result the Revamp Project commenced merely based on the rehabilitation study of Namrup Plant prepared by FEDO and adopted by ICICI.
(c) Despite instructions of DoF for strengthening the manpower of the company both at Corporate and Unit Level Shri Nehru deliberately and willfull omitted to undertake this task with consequence that the Project could neither be executed nor monitored up to its requirements and lagged behind with time and cost overruns.
(d) A proper Project Team (PT) was not constituted. The project implementation commenced with the award of contract to PDIL on a 'single point responsibility' basis without adhering to the procedure for selection of such Consultants. The project was to be completed within 30 months. However, no methodology was adopted for timely completion of the project.
(e) Floating enquiries for procurement of equipments was commenced 1-1/2 years after the approval of the Namrup Orject was conveyed to the CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 70 Of 80Company by the Government. Thus, the project has had a 'false start' and was doomed to cost and time overruns ab-initio.
2. This action of Shri J.L. Nehru has caused a avoidable embarrassments to the management of the company and to the Government of India as a promoter. The Competent Authority, has, therefore, decided to hereby convey the 'displeasure' of the Government in this regard to Shri J.L. Nehru, Ex- CMD, HFC."
74. The first memorandum of displeasure dated 28.04.2006 conveyed the 'displeasure' of the government to the plaintiff in respect of the time and cost overrun of the Namrup project. This memorandum was issued to the plaintiff without giving him an opportunity of hearing and without hearing his side of the story. This memo came to be set aside vide the order dated 30.07.2010 passed by the Hon'ble High Court in W.P.(C) No. 3883/2010.
75. Thereafter, the second memorandum of displeasure dated 10.09.2010 was issued whereby the defendants decided to not withdraw the previous memorandum of displeasure, The relevant portion of the memo dated 10.09.2010 is extracted hereunder:
"xxx xxx xxx CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 71 Of 80NOW THEREFORE after taking into consideration all aspects, the competent authority decides and reiterates that Shri J. Nehru cannot be absolved of his share of responsibility in the time and cost over- run of Namrup Revamp Project, and therefore it would not be in public interest to withdraw the memorandum of 'displeasure' already issued to him vide Memo, dated 28th April, 2006."
76. The said memorandum of displeasure dated 10.09.2010 was ultimately also set aside by the Hon'ble High Court of Delhi vide order dated 02.07.2013 in W.P.(C) No. 3883/2011 on the twin basis that, firstly, again there was violation of principles of natural justice, and, secondly, the memo was without authority, since it was issued to a retired employee without any rules providing for the same.
77. The memo dated 10.09.2010 being illegal and invalid in law, clearly, legal injury was caused to the plaintiff. The plaintiff has deposed to the effect that he has suffered mental agony and hurt, and, given the nature of the memo of displeasure, in all probability this would have happened. After the first memo of displeasure dated 28.04.2006 was issued, the plaintiff was continuously following up with the defendants for withdrawal of the same. The defendants, however, refused to withdraw the same. The plaintiff was constrained to commence writ proceedings and succeeded in the same. The defendants were directed to give a fresh opportunity of hearing to the plaintiff and CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 72 Of 80provide him with the primary material forming the basis of the standing committee's report. However, the primary material was not given to the plaintiff. Although the first memo of displeasure had already been set aside, the defendants still proceeded as if they were only to decide whether the memo was to be withdrawn, when they ought to have given a proper hearing and then decided the things afresh. However, the defendants without giving a proper hearing and providing the primary materials on which the standing committee's report was based simply issued the second memo on the basis that the first memo was still existing and stating that the first memo of displeasure was not liable to be withdrawn. The plaintiff was again constrained to invoke writ proceedings and the second memo of displeasure came to be set aside as illegal vide order dated 02.07.2013 of the Hon'ble High Court. Clearly, the plaintiff suffered harassment due to the memo of displeasure dated 10.09.2010 which was ultimately declared to be illegal and set aside. The nature of the memo of displeasure is also such that the plaintiff would have in all probability suffered humiliation and mental agony as is claimed by him.
78. The plaintiff has also deposed that the news of the memorandum of displeasure having been issued to him had also been widely circulated in the public and had come to the knowledge of people known personally and professionally to the plaintiff. The plaintiff has also deposed that persons in the government departments CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 73 Of 80where the plaintiff had been working were talking about the memo of displeasure and there were persons who started raising questions about the plaintiff's competence and integrity. The plaintiff has further deposed that the Department of Fertilizers had issued copies of the correspondence regarding the subject of conveyance of displeasure in the Ministry of Chemical and Fertilizers, Department of Fertilizers, Hindustan Fertilizers Corp. Etc. Besides conveying to the Cabinet Committee on Economic Affairs and to at least 7-10 Secretaries of various departments of the Government of India. This testimony of the plaintiff is believable. The plaintiff had worked all his life in the government sector and had retired as a senior government official. When the news of the issuance of the memo of displeasure would have spread in the government departments, he would have come to know from his peers and professional acquaintances regarding this. The nature of the memo of displeasure was certainly such that the reputation of the plaintiff would have been negatively affected.
79. The plaintiff had retired as a senior government official and had to face harassment at the hands of the defendants owing to the memo of displeasure which was ultimately held to be illegal and set aside by the Hon'ble High Court in the writ proceedings. The plaintiff also suffered mental agony and hurt due to the memo of displeasure. The reputation of the plaintiff was also tarnished. The second memo of displeasure was issued to the plaintiff on CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 74 Of 8010.09.2010, and the plaintiff had also set about to challenge the memo through writ proceedings which culminated in the order dated 02.07.2013 of the Hon'ble High Court setting aside the memo of displeasure. Thus, the suffering and loss caused to the plaintiff due to the second memo of displeasure was during the period from 10.09.2010 when the second memo was issued till 02.07.2013 when the memo was set aside.
80. The ld. Counsel for the plaintiff has relied upon the decision in F.T. Kingsley (supra) and has submitted that when the defendant has by his own wrong put it out of the plaintiff's power to prove the quantum of damage exactly, the presumption is against the defendant and the burden is upon the defendant to reduce the amount from the highest possible estimate. It is the submission of the plaintiff that the plaintiff has claimed amount of Rs. 1 Crore as damages and the burden was on the defendant to reduce the amount.
81. In F.T. Kingsley (supra), the Hon'ble High Court of Calcutta held that the amount of damages recoverable was as a general rule governed by the actual damage sustained in consequence of the defendant's act. It was held that in cases admitting proof of such damage, the amount must be established with reasonable certainty, and, further, that this did not mean that absolute certainty was required. It was held that damages are not uncertain for the reason that the loss sustained was incapable of proof with the certainty of mathematical demonstration. It was held that certainty to CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 75 Of 80reasonable extent was necessary, meaning that the loss or damage must be so far removed from speculation or doubt as to create in the minds of intelligent and reasonable men the belief that it was most likely to follow from the breach of the contract and was a probable and direct result thereof.
82. In F.T. Kingsley (supra), it was further held that in the extreme cases where the defendant had by his own wrong, put it out of the plaintiff's power to prove the quantum of damage exactly, the presumption was against the defendant and the burden was upon the defendant to reduce the amount from the highest possible estimate. The ld. Counsel for the plaintiff has placed special emphasis on this in arguing that the plaintiff would be entitled to damages of Rs. 1 Crore, since the defendant had failed to discharge the burden to reduce the amount.
83. I have considered this aspect of the matter and I am afraid, this submission cannot be accepted. In F.T. Kingsley (supra), the facts were that the plaintiff had paid consideration to the defendant State for a licence to capture elephants. Previously, in the first year, the plaintiff had captured 279 elephants and in the second year he had captured 342 elephants. However, in the following period he could not catch as many elephants due to the wrongful acts of the defendant. The Hon'ble High Court observed (in paragraph 6 of its judgment) that the plaintiff had proved that he had on an average captured one elephant CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 76 Of 80per stockade per week, which would make six elephants in two weeks in the concerned three stockades, and the plaintiff had on this basis urged that the damage should be calculated on the aggregate price of six possible captures. Thus, in F.T. Kingsley (supra), the plaintiff had been able to prove a highest possible estimate, and it was in this context that the Hon'ble High Court held that when the defendant had by his own wrong put it out of the plaintiff's power to prove the quantum of damages exactly, the presumption was against the defendant and the burden was on the defendant to reduce the amount from the highest possible estimate.
84. In the present case, although the plaintiff has claimed the amount of Rs. 1 Crore as damages, however, the plaintiff has been unable to give any justification as to how this quantum of damages has been arrived at. Hence, unlike in the case of F.T. Kingsley (supra), in the present case, the plaintiff has not been able to prove the highest possible estimate, and, hence, the argument that the burden was on the defendants to reduce the amount from claim of Rs. 1 Crore would not hold.
85. In the decision in Ram Jethmalani (supra) delivered on 03.01.2006, and which is relied upon by the plaintiff herein, the plaintiff was a senior advocate and a member of Parliament. He had filed the suit claiming damages of Rs. 50 lacs for seriously defamatory statements by the defendant to the effect that the plaintiff was receiving CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 77 Of 80money from the LTTE which was a banned organisation. The Hon'ble High Court held that the defendant's statements were defamatory and proceeded to award damages. The Hon'ble High Court observed (in paragraph 104 of the judgment) that the quantification was a problem as honour and reputation were inherently incapable of being valued in terms of money. The Hon'ble High Court proceeded to consider the professional standing of the plaintiff and his stature in social life and awarded damages of Rs. 5 lacs to the plaintiff.
86. In the present case also, it is not easy to quantify the harassment caused to and the mental agony and hurt suffered by defendant in monetary terms. Similarly, it is not easy to quantify the tarnished reputation in monetary terms. However, nevertheless, some monetary standard would have to be arrived at to award the damages to the plaintiff to reasonably compensate him for the injury suffered.
87. I have considered the professional standing of the plaintiff and the senior position from which he retired from service. I have also considered that despite directions in the first round of the writ proceedings to give proper opportunity of hearing to the plaintiff, the defendants did not give fair opportunity to the plaintiff. I have also considered that the memo of displeasure was illegal and ultra vires the relevant rules and as such was set aside by the Hon'ble High Court in the second writ proceedings. I have also CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 78 Of 80considered that the plaintiff was also able to mitigate the damage by successfully challenging the memo of displeasure in the second round of writ proceedings initiated by the plaintiff. Considering the overall facts and circumstances of the case, an award of lump-sum amount of Rs. 6 lacs would be reasonable towards compensation to the plaintiff against the defendant no.10 i.e. Union of India.
88. As held by the Hon'ble High Court of Bombay (Division Bench) in Rustom K. Karanjia (supra) (at paragraph 46), damages are purely compensatory, however, exemplary or punitive damages may be awarded in two categories, one of which is in those cases where the plaintiff is injured by the oppressive, arbitrary or unconstitutional action by the executive or the servants of the government. In the present case, the memo of displeasure was clearly illegal and arbitrary and has, accordingly, been set aside by the Hon'ble High Court in the second round of writ proceedings on the basis that it was passed without giving a fair opportunity of hearing to the plaintiff and also since it was beyond the powers of the authority. The facts and circumstances of the present case would also warrant exemplary and punitive damages, which I deem reasonable to compute as Rs. 50,000/- to be paid to the plaintiff by the defendant no.10.
89. It would also be appropriate to grant interest on the damages @ 6% p.a. from the date of filing of the suit till CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
Page No. 79 Of 80the date of the decree and @ 9% p.a. from the date of the decree till actual realization.
Issue No.5- Whether the plaintiff is entitled for the costs of the suit? OPP
90. Since the plaintiff has succeeded in the suit, the plaintiff would be entitled to the costs.
DECISION
91. Accordingly, decree is passed in favour of the plaintiff and against the defendant no.10 (Union of India) only for sum of Rs. 6,50,000/- towards compensation and damages along with interest @ 6% p.a. from the date of filing of the suit till the date of the decree and @ 9% p.a. from the date of the decree till actual realization. Costs are decreed in favour of the plaintiff and against the defendant no.10. Pleader's fee is computed as Rs. 50,000/-.
92. Let the decree-sheet be drawn up accordingly.
93. File be consigned to record room after due compliance.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/31.05.2024 CS No. 59152 of 2016 J Nehru Vs. D Banerjee & Ors.
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