Delhi District Court
Colonel Yatendra Kumar Yadav vs Major General B.S. Verma on 31 January, 2022
IN THE COURT OF SH. AJAY GARG, ADDITIONAL DISTRICT
JUDGE 01, PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
CS No. 58714/16
Colonel Yatendra Kumar Yadav
No. MR 05759X
Army Medical Corps
Now posted as Senior Registrar &
Officer Commanding Troops
Military Hospital, Shillong,
Shillong Cantonment, Meghalaya.
......... Plaintiff
Versus
1. Major General B.S. Verma, VSM
House no. 193, Sector 9,
Faridabad, Haryana
..... Defendant
2. Union of India
Through the Secretary to the Government of India
Ministry of Defence, South Block,
New Delhi.
3. The Director General of Medical Services
Directorate General of Medical Services
(Army) / DGMS1(b)
Adjutant General's Branch
Integrated Head Quarters of the Ministry of Defence (Army)
'L' Block, New Delhi - 110001
4. The Manor General (Medical)
Head Quarters Northern Command (Medical)
PIN - 908 545
C/O 56 APO
........ Proforma defendants
CS no. 58714/16
Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 1 of 21
Suit presented On : 12.10.2015
Arguments Concluded On : 14.12.2021
Judgment Pronounced On : 31.01.2022
JUDGMENT
1. This is a suit for damages for liability in the tortious act of defamation. Brief facts necessary for adjudication of the present suit are as follows :
(i) The plaintiff is employed as an officer of Indian Army in the Army Medical Corps, holding the rank of Colonel, posted as Senior Registrar and Officer Commanding Troops at the Military hospital, Shillong.
Defendant no. 1 is also an officer of Indian Army in the Army Medical Corps currently holding the rank of Major General, posted now as Major General (Medical) at the Head Quarters of the Eastern Command. The plaintiff is not seeking any relief from the defendants no. 2 to 4 and are placed as proforma defendants.
(ii) The plaintiff is an alumnus of the Rashtriya Military School, Ajmer and Armed Forces Medical College, Pune with illustrious track record. The plaintiff was posted as the commanding officer of the 425 Field Hospital of the Indian Army, Northern Command w.e.f. 16.03.2010 till 15.07.2012, when he came out on transfer and joined his CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 2 of 21 post at Military Hospital Shillong and during his posting as Commanding Officer, plaintiff made some major achievements.
(iii) The 425 Field Hospital is under the immediate command of the Medical Branch of the Head Quarters of 25 Infantry Division which is under the command of the Medical Branch of the Head Quarters of the Northern Command of Indian Army headed by Major General (Medical) which post is held by defendant no. 1. On 10.04.2011 at 2120 hours, 425 Field Hospital received log message at serial no 56 from 25 Infantry Division (Medical) asking to send ambulance assistant on temporary duty to the Medical Branch of the Head Quarters, Northern Command from 10.04.2011 to 25.05.2011 and Sepoy G. Maity was detailed. Since the sepoy was on leave another sepoy D.K. Choubey was detailed to the Medical Branch vide movement dated 18.05.2011.
(iv) On expiry of the temporary duty on 25.05.2011 the said sepoy ambulance assistant D.K. Choubey was not reverted back to the 425 Field Hospital despite repeated reminders. Plaintiff wrote letter numbers 157/M1, dated 03.12.2011 to Medical Branch of the Head Quarters, Norther Command requesting for the individual to be CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 3 of 21 reverted back with copies to Medical Branch of the Head Quarters of the two other intermediate higher formations.
(v) Thereafter on 13.01.2012, the Directorate General of Medical Services (Army) gave an order posting the plaintiff out from the post of Commanding Officer, 425 Field Hospital to the post of Senior Registrar at Military Hospital, Shillong. The general policy was to retain officers of the Army Medical Corp at the place of their posting for at least two and half years vide Directorate General of Medical Services (Army) letter no. B/67001/Policy/DGMS 1(b)dated 03.01.2012, but the plaintiff had completed only about one year and ten months as Commanding Officer of 425 Field Hospital.
(vi) On receipt of order of transfer and posting, plaintiff submitted application dated 14.01.2012 requesting that either he be retained at his existing post as Commanding Officer, 425 Field Hospital or otherwise his posting to Shillong be cancelled and he be posted to some other field station so as to enable him to retain his family accommodation allotted to him. Subsequently, plaintiff was informed vide letter dated 29.03.2012 that his transfer and posting to Shillong has been deferred till 30.04.2012. However, owing to non availability of reliever, he was CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 4 of 21 finally relieved from 425 Field Hospital on 14.07.2012 and he joined his post at Military Hospital, Shillong on 21.07.2012.
(vii) Plaintiff filed RTI application dated 16.08.2012 which reply was received vide letter dated 23.10.2012 alongwith DO letter written by defendant to Director General of Medical Services (Army) alleging falsely that plaintiff during his posting as Commanding Officer of 425 Field Hospital was unable to get alongwith local commanders, creating unnecessary ill will and friction in day to day functioning ; in habit of writing insubordinate letters to higher formations including Head Quarters of Northern Command.
(ix) Legal notice dated 04.12.2012 was sent to defendant no.1 and on 14.03.2013 filed formal statutory complaint under the relevant provisions of Army Act and relevant rules, orders and regulations as applicable through proper channel to the concerned higher authorities.
2. Summons were sent to defendant no.1 and written statement was filed averring that the suit is liable to be dismissed as this Court has no jurisdiction to entertain the present suit as the suit is barred by provisions of Armed Force Tribunal Act, 2007 vide Section 3 (o) ; as per CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 5 of 21 Section 33 of the said Act, jurisdiction of the civil court is expressly barred ; the DO letter only talks about plaintiff's attitude and behaviour as Commanding Officer of 425 Field Hospital ; no defamatory language or no character assassination has been used as alleged by the plaintiff ; statutory complaint of plaintiff has been dismissed by the Government of India and if any grievance is there, the right course for the plaintiff is to file appropriate petition before Armed Force Tribunal which the plaintiff has already filed ; the plaintiff was aware of the alleged DO letter written by defendant no.1 before his transfer from northern command.
3. It is further averred on merits that there was no justifiable cause for issuance of legal notice and demand thereof against an officer based on noting on the file ; MG (Med) HQ (NC) was fully capable and justified in drawing conclusions based on various inputs received from the environment and his own interaction with the plaintiff ; as per procedure of service correspondence, no unit is permitted to correspondence directly with higher headquarters bypassing the intermediate formations ; the transfer and posting was effected as per the Army Headquarter policy letter no 13192/Policy/DGMS 1 (b) dated 16.01.2004 and as per the extant policy on the matters of posting and tenures the stipulated period of command is 2 to 2 ½ years is correct but organizational requirements are overriding and take priority ; plaintiff was moved out after completion of 2 years and 04 months and not prematurely.
CS no. 58714/16Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 6 of 21
4. Written statement was filed by the proforma defendants no. 2 to 4 averring that the suit is not maintainable as it is preferred without any good ground and deserves to be dismissed under Order VII Rule 11(a) of CPC. Rest of the contents of the plaint were denied.
5. From the pleadings, following issues were framed vide order dated 17.07.2017 :
1. Whether this court has no jurisdiction to entertain and try the present suit? OPD1
2. Whether the suit is time barred? OPD1
3. Whether the plaintiff is guilty of suppression of material facts, if so effects? OPD1
4. Whether the plaint is liable to be rejected under Order 7 rule 11 of CPC? OPD
5. Whether the suit is barred due to non issue of mandatory notice on behalf of the plaintiff? OPD
6. Whether the plaintiff is entitled for decree(s) for declaration as prayed? OPP
7. Whether the plaintiff is entitled for decree for damages, if so, at what amount? OPP
8. Relief.
6. In order to substantiate its case, the plaintiff himself stepped in witness box as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. In his affidavit Ex. PW1/A, PW1 has reiterated the facts averred in the plaint and has placed reliance on the following documents:
i. Movement order dated 18.05.2011 Ex. PW1/1
ii. Letter dated 03.12.2011 Ex. PW1/2
iii. Posting order dated 13.01.2012 Ex. PW1/3
iv. Letter no. B/67001/Policy/DGMS1 (b), dated 03.01.2012
Ex. PW1/4
v. Application dated 14.01.2012 Ex. PW1/5
CS no. 58714/16
Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 7 of 21
vi. Document bearing INDARMY (DGMS - 1B), MESSAGE
ID : 3, Signal no. 441010/DGM1B, dated 29.03.2012 Ex.
PW1/6vii. RTI application dated 16.08.2012 Ex. PW1/7 viii. Movement order dated 17.09.2012 Ex. PW1/8 ix. Reply dated 23.10.2012 to the RTI application Ex. PW1/9 x. The Directorate General of Medical Services (Army) / DGMS 1 (b) note no. B/71535/RTI/DGMS - 3A/DGMS 1(b) dated 04.09.2012 Ex.PW1/10 xi. Noting sheet dated 18.01.2012 and 19.01.2012 Ex. PW1/11 xii. Noting sheet dated 23.01.2012 Ex. PW1/12 xiii. Noting sheet dated 06.02.2012 Ex. PW1/13 xiv. RTI application dated 06.11.2012 Ex. PW1/14 xv. Communication no. B/71535/RTI/DGMS3A/DGMS1(b) dated 06.03.2013 Ex. PW1/15 xvi. Letter no. 43244/RTI/252/DGAFMS/DG1C/1X dated 28.03.2013 Ex. PW1/16 xvii. Letter no. 111080/43/Gen/YKY/RTI/Edn, dated 06.04.2013 Ex. PW1/17 xviii. Appeal dated 15.04.2013 Ex. PW1/18 xix. Letter no. 22009/RTI/Edn(PC)/251 dated 16.05.2013 Ex. PW1/19 xx. Legal notice dated 04.12.2012 Ex. PW1/20 xxi. Statutory complaint dated 14.03.2013 Ex. PW1/21 xxii. Letter no. B/5759/DGMS19(b), dated 27.02.2014 Ex. PW1/22 xxiii. Order no. 15(10)/2014/D (Medical) dated 14.02.2014 Ex. PW1/23 xxiv. Order dated 21.11.2014 passed by Ld Assistant District Judge, Shillong Ex. PW1/24 - Mark H xxv. Order dated 11.08.2015 passed by Hon'ble High Court of Meghalaya Ex. PW1/25 - Mark I xxvi. Order dated 19.08.2015 passed by Ld Assistant District Judge, Shillong Ex. PW1/26 xxvii. Original returned plaint Ex. PW1/27 xxviii.Defamatory DO letter dated 10.12.2011 Ex. PW1/28 xxix. Order dated 17.09.2014 passed by Armed Forces Tribunal, CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 8 of 21 Shillong Ex. PW1/29 xxx. Order dated 19.08.2015 passed by Ld ADJ, Shillong Mark J 6.1. This witness was extensively crossexamined by ld counsel for defendant wherein the plaintiff admitted the following documents :
(i) Letter written to defendant no. 1 Ex. PW1/D1
(ii) Letter dated 24.04.2012 written by plaintiff to defendant no.1 Ex. PW1/D2
7. PW2 Subedar G.N. Chaturvedi brought the summoned recorded of the plaintiff. He submitted that the letter dated 10.12.2011 written by defendant no.1 is not on record however, its photocopy is available on the file ; there is noting on DO letter either in original or in photocopy. He admitted that without noting no posting order can be issued about the officer. He was unable to stated that all posting orders of officers are first approved on noting sheet. Original posting order dated 13.01.2012 was not available on record and only photocopy bearing no. 10A was available. The final approving authority for posting of officers of the rank of Col. Select is DGAFMS. He proved the complete noting sheets from page no. 1 to 7 Ex. PW2/1.
8. In defence, defendant no.1 stepped in witness box as DW1 and tendered his evidence by way of affidavit Ex. DW1/A, DW1 submitted that during the period 20112012 he was served as Maj. Gen (Medical) Northern Command and he wrote DO letter Ex. PW1/25 to AFMS (Army), Army HQ, New Delhi for transferring plaintiff as CO of 425 Field hospital. There is no character assassination in the contents of CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 9 of 21 DO letter Ex. PW1/25. The plaintiff as Commanding Officer has addressed the letter Ex. PW1/2 directly to Command Head Quarter and has violated the enshrined provision of channel of correspondence.
9. He further deposed that plaintiff had poor administration of the unit and having no knowledge of rules, regulations etc. The plaintiff's application for posting to another field area was recommended by defendant no.1 and did not object to the deferment of his posting and as such defendant no.1 was not vindictive or biased against the plaintiff. The effect of DO letter Ex. PW1/25 written by defendant no.1 got nullified following issuance of order by office of DGMS Army for deferment of transfer of plaintiff to MHShillong till 30.04.2012.
This witness was exhaustively crossexamined by ld counsel for plaintiff
10. The Court has heard Sh. Sonal Sinha, ld counsel for the plaintiff and Sh. S.C. Phogat, ld counsel for defendant no.1 and Ms. Ruby, ld counsel for proforma defendants no. 2 to 4 and has gone through the record with their assistance.
11. Accordingly, my issuewise findings are as under :
1. Whether this court has no jurisdiction to entertain and try the present suit? OPD1 Onus to prove this issue is upon defendant no.1. In support, defendant claimed that by virtue of Section 33 of the Armed Forces CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 10 of 21 Tribunal Act, this Court has no jurisdiction to try and entertain the present suit it being a service matter. However, upon holistic reading of the entire pleading it is observed that the bone of contention of the instant suit is the DO letter dated 10.12.2011 (Ex. PW1/28) written by defendant no.1 which plaintiff claims to be defamatory in nature and thus filed the instant suit. Thus, defamation being a tortious liability, cannot by any stretch of imagination be treated as service matter and therefore, this Court has jurisdiction to entertain the instant suit. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
ISSUE NO.2
2. Whether the suit is time barred? OPD1
12. Onus to prove this issue is upon defendant no.1. By virtue of this issue defendant has claimed that the plaintiff's entire claim is based on a DO letter dated 10.12.2011 Ex. PW1/28 which plaintiff claims to be defamatory in nature. Therefore, as per Article 75 of Limitation Act the limitation to file suit for damages on account of defamation is one year from the date of publication of the libel. Defendant further submits that even if, for the sake of arguments, it is presumed that plaintiff came to know about the extract of DO letter vide RTI reply dated 28.10.2012 or at best on 04.12.2012 on which date he sent legal notice in respect of the allegations, still the period of limitation of one year would commence from 04.12.2012 onwards and thus it is hopelessly barred as the instant suit was initially filed before the Shillong Court on 21.04.2014 which was later on withdrawn / returned due to lack of territorial jurisdiction. Thereafter, it was filed before this Court. In CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 11 of 21 support defendant relied upon judgment titled Manik Lal Bhowmik Vs. Bharat Sanchar Nigam Limited decided on 17.02.2017 and N.N.S. Rana Vs. Union of India & Ors decided on 16.09.2011.
13. Per contra, ld counsel for plaintiff submits that when plaintiff came to know about the alleged DO letter vide RTI, he sent legal notice to defendant no.1 calling upon him to either prove the allegations or to pay Rupees Fifty Crores as damages. However, defendant no.1 failed to reply the same, thereafter, he filed statutory complaint Ex. PW1/21 dated 14.03.2013 to Central Government under Section 27 of the Army Act wherein he asked for direction to defendant no.1 to pay suitable compensation for damages caused to the reputation of the plaintiff by making false baseless and concocted allegation in the DO.
14. Acting on legal advice, he availed statutory remedies before taking recourse of law in the court within one year. After rejection of statutory complaint vide order date 14.02.2014 Ex. PW1/23, plaintiff initially filed a suit before Shillong Court and upon its return on account of territorial jurisdiction filed the same before this court. Hence, it is within limitation. He further submits that even if, it is assumed that the statutory complaint was not a proper forum for seeking redressal of the grievance of the plaintiff, still under Section 14 of the Limitation Act he is entitled for exclusion of time taken in pursuing the statutory complaint in good faith. In support he relied upon judgments titled M.P. Steel Corporation Vs. Commissioner of Central Excise (2015) 7 SCC 58 and CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 12 of 21 Kalpraj Dharamshi and Ors Vs. Kotak Investment Advisors Ltd and Ors (2021) 225 Comp Cas 565 (SC)
15. Submissions heard. Considered.
Article 75 of the Limitation Act provides limitation of one year for seeking compensation on account of libel from the date of its publication. The plaintiff claimed that he filed his claim within a period of one year by filing statutory complaint before Central Government as per Army Act.
16. However, this contention of the plaintiff that he was under
the bonafide impression and belief that the relief prayed by him in present suit are akin to the relief prayed in the statutory complaint, fell within the ambit of service matters as defined in Section 3(O) of the AFT Act which expressly bars the jurisdiction of civil courts under Section 33 of the Act is also not tenable since relief of damages arising of tortious liability by no stretch of imagination can be called as service matter for which the plaintiff claimed to be bonafide pursuing before Central Government by filing statutory complaint. Section 14 of the Limitation Act would also not come to the rescue of the plaintiff as it only excludes the time wherein remedy is being pursued before a Court only. Reliance on the judgment of M.P. Steel (supra) is also misplaced, since the said judgment only enlarge the scope of Section 14 of Limitation Act by extending it from Civil Court to Tribunals exercising quasi judicial powers. However, the said judgment does not apply to the administrative CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 13 of 21 proceedings or any grievance redressal mechanism of the Central Government.
17. Accordingly, the period consumed by the plaintiff in pursuing his statutory complaint before Central Government cannot be excluded under Section 14 of the Limitation Act. Therefore, at best the limitation would run w.e.f. 28.10.2012 i.e. upon receipt of RTI reply or at max on 04.012.2012 when he issued legal notice claiming compensation and would expire on 03.12.2013 whereas the first suit was filed by the plaintiff after rejection of his statutory complaint vide order dated 14.02.2014. Hence, this suit is barred by limitation. Thus, this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NOS. 3 and 43. Whether the plaintiff is guilty of suppression of material facts, if so effects? OPD1
4. Whether the plaint is liable to be rejected under Order 7 rule 11 of CPC? OPD
18. Onus to prove these issues were upon the defendant. However, since neither any evidence has been led on these issues nor any material arguments have been advanced, these issues are decided against the defendants.
ISSUE NO. 55. Whether the suit is barred due to non issue of mandatory notice on behalf of the plaintiff? OPD
19. Onus to prove this issue was upon the defendants no. 2 to 4 CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 14 of 21 since they raised an objection to this effect. However, since no relief has been claimed qua defendants no. 2 to 4, they being proforma party and since plaintiff claimed that the civil suit filed before Shillong Court amounts to substantial compliance of Section 80 of CPC, this issue is decided against the defendants and in favour of the plaintiff.
ISSUE NO. 66. Whether the plaintiff is entitled for decree(s) for declaration as prayed? OPP
20. This entire issue revolves upon the DO letter dated 10.12.2011 (Ex. PW1/28) written by defendant no.1. The extract of the relevant portion of the same is reproduced herein :
"MR05759X Col YK Yadav, CO 425 Fd Hosp:
(a) The offr is unable to get along with local cdrs, creating unnecessary ill will and friction in day to day functioning.
(b) He is in the habit of writing insubordinate letters to higher fmns, incl HQ Northern Comd."
21. The plaintiff claims that vide said DO letter, defendant no.1 made defamatory allegations against the plaintiff of misconduct and insubordination, which in the armed forces is considered to be serious offences and carries with them extreme consequences including court martial of the concerned official. He further submits that the said allegations are nothing but false and baseless made by defendant no.1 with malafide intention to harm the reputation and character of the plaintiff in order to lower him in the estimation of the right thinking members of the society generally and in particular to show him in bad CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 15 of 21 light in the eyes of his colleagues and cause disparagement and injury to him in his service with the illmotivated design to settle the grudge against the plaintiff for writing the letter Ex.PW1/2 dated 03.12.2011.
22. He further submits that the plaintiff being the Commanding officer wrote the said letter in order to keep the higher authorities informed interalia about Sepoy D.K. Choubey not having been reverted back to his parent unit despite expiry of his temporary duty with the Medical Branch of HQ Northern Command on 25.05.2011. It is further stated that the plaintiff being the CO of 425 FH owed a duty to keep a check on the movement of the officials personnel within his unit. On the other hand, though the plaintiff in his letter Ex.PW1/2 did not point fingers on any particular individual, the same was understood by the defendant no.1 to have been directed at him being the MG (Med) of the HQ Northern Command.
23. Per contra, defendant no.1 submits that the DO letter Ex. PW1/28 was written by him in his official capacity on the basis of the inputs received from the relevant quarters and in no way intended or amount to causing any injury to the plaintiff. It is further submitted by defendant no.1 that owing to service exigencies and the hierarchical organizational structure in the Armed Force, the interaction between the commanding officers and the higher Head Quarters occurs in a multitude of way and is not limited to one on one meeting / visits etc. Due to the organization structure, the individual officer / unit and formations interact with each other and the reporting officers get opportunities for CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 16 of 21 assessment of officers in their area of responsibility. Thus the MG (Med) HQ (NC) was fully capable and justified in drawing conclusions based on the various inputs received by him from the environment and his own interaction with the plaintiff and informed the same to the higher formulation recommending the posting out of the plaintiff within the four corner of the charter of duties and responsibilities.
24. It is further submitted that bare perusal of the letter written by the plaintiff directly to defendant no.1 without following the necessary protocol and the language used therein categorically indicates that the observations of defendant no.1 recorded in DO letter Ex. PW1/28 are true and in the larger interest of the entire cadre without any malice towards the plaintiff. In support reliance was placed upon case titled Pandey Surendra Nath Sinha & Anr Vs. Bageshwari Prasad AIR 1961 Pat 164:
12. Speaking generally, every man is entitled to his good name and to the esteem in which he is held by others, and, has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse. Reputation and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace and wellbeing of civilized commonwealth that the law should protect the reputation as well as the person of the citizen.
14. A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of rightthinking members of society generally and in particular to cause him to be shunned or avoided or regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Defamation, therefore, is the wrong done by a person to another's reputation by words, signs, or visible CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 17 of 21 representations.
15. The test of the defamatory nature of a statement, thereiore, is its tendency to excite against the plaintiff the adverse opinions or feelings of other persons. The statement is judged by the standard ot opinion which prevails among ordinary, right-thinking members of society, reasonable people of time and place, and not the opinion which prevailed in another time, or in another country or among a special class or abnormally constituted people. Hence, the test is an objective one, and it is no defence to any that the statement was not intended to be defamatory, or uttered by way to a joke. As lightly said: "No one can cast about firebrands and death, and then escape from being responsible by saying he was in sport."
19. We are here concerned with an action for libel. In an action for libel the plaintiff should prove that the statement complained of (1) refers to him; (2) is in writing, (3) is defamatory, and, (4) was published by the defendant to a third person or persons. A man publishes defamatory statements at his peril. An action for libel, therefore, lies on mere proof of publication, even though the plaintiff does not prove that he has sutiered any special damage, that is, the loss of some definite temporal advantage.
21. It may, however, be mentioned that, although both in England and in India, it is unnecessary for the plaintiff to prove the following facts, it has been customary to allege them in the plaintiff's pleading; (a) Falsity of the statement. It is for the defendant to prove that it is true; (b) Malice of the defendant. The plaintiff has to prove malice to rebut the defence of privilege or fair comment, but otherwise it is not necessary in order to make out the plaintiffs case. The allegation of malice means nothing more than that the defendant published a defamatory statement without lawful excuse; and (c) damage to plaintiff's reputation. The law presumes it from the defamatory tendency of the words. The above points the plaintiff need not prove.
25. Submissions heard. Considered.
A bare perusal of the letter written by plaintiff to defendant no.1 which as per defendant no.1 is one of the consideration for him to write the DO letter in question, shows that the tenor of the said letter Ex. PW1/2 was not in good taste though it was addressed to the superior most authority of the command. The relevant extract of said letter is as CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 18 of 21 follows:
"in spite of repeated requests indl has not been reverted back so far. In the interim period, indl was sent on leave three times, without seeking approval of this unit. On all three occasions, copy of movement order / leave certificate was received 0708 days after the indl has proceeded on leave. As a result, this unit continued to reflect this indl on Temp Duty in daily parade state on all three occasions, though he actually was away on leave. As brought out in para 2 above, this can have serious implications. In addition, not only unit is unable to keep proper record of the leave availed by the indl, but his personal documentation like Part II Orders etc, which are important welfare measures, get unduly delayed.
It may kindly be appreciated that not only granting of leave is a prerogative of the Commanding Officer of the indl, but more importantly, seeking approval of the unit to which indl belongs is important to ensure correct documentation, incl maintaining 'daily parade state'. In view of the above, in future you are kindly requested to seek prior approval of this unit before sending personnel of this unit, atd to your HQ on TD, on leave.
26. This letter was addressed by the plaintiff in his official capacity to the senior most authority of his command. However, the language and choices of words such as seeking approval of the unit etc somehow undermine the authority of the senior most by a subordinate. Therefore, the writing of the DO letter by defendant no.1 in his official capacity, on the basis of the letter Ex. PW1/2 written by plaintiff, cannot be called as defamatory in the general prudence of the common man. Even otherwise, the official letters written by an authority to his superior, in the interest of the organization, does not attract tortious liability, as CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 19 of 21 else, it would open a Pandora box for every individual who being unsatisfied / disturbed of his transfer, or shifting of his nature of duties, to approach the Courts alleging defamation or disrepute on account of those official letters. It would also hamper the hierarchical system of any organization and would act as a roadblock in the smooth functioning of any government organization and would restrain authorities from communicating upon the conduct of subordinates which otherwise would be in the best interest of the organization concerned.
27. In these circumstances, it is held that the language of the said DO letter cannot be termed as defamatory in nature and thus no declaration that defendant no.1 has committed very grievous and injurious act of character assassination and defamation of the plaintiff in writing the DO letter in his capacity as the Major General (Medical) at the Head Quarters of the Northern Command of Indian Army of Medical Services (Army) on this account can be awarded to the plaintiff. Thus, this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO. 77. Whether the plaintiff is entitled for decree for damages, if so, at what amount? OPP
28. In view of the findings recorded in the above issues, since the DO letter cannot be held as defamatory in nature, no damages can be accorded on account of said DO letter. This issue is also decided in favour of the defendant and against the plaintiff.
CS no. 58714/16Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 20 of 21 ISSUE NO. 8 RELIEF
29. In view of the above discussions, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court On 31.01.2022 (Ajay Garg) Additional District Judge01, New Delhi District, Patiala House Courts, New Delhi CS no. 58714/16 Col. YK. Yadav Vs. Maj Gen. B.S. Verma & Ors Page no. 21 of 21