Case: UNION OF INDIA &amp; ANR Vs. COL. A.D. NARGOLKAR &amp; ORS

Col AD Nargolkar if the need arose.? 33. Notwithstanding the same, the COI has come to the findings that allegations in the complaint stood proved. It has based its findings by taking into consideration the following two aspects:(a) The Officer has given an unconditional apology on September 22, 2007 to Mr. Pundir expressing regret over his action if they had caused him trouble and harassment and promising not to interfere directly or indirectly in the personal life of Mr. Pundir and his family members.(b) The allegations in the complaint lodged by the complainant were not contested by the Officer during the proceedings of the COI. In this behalf, the report records as under:?13. The allegations in the complaint lodged by Mr. D.S. Pundir have not been contested by Col AD Nargolkar during the proceedings of the COI despite the effect of the allegations on his character and military reputation and a chance to cross examine both Mr. D.S. Pundir and Col. V.S. Bhatti under provisions of Army Rule 180. In his statement to the court and answers given to various questions asked by the Court, Col AD Nargolkar has cited technicalities that the complaint is not being pursued and is presently non existent.? 34. The aforesaid approach is clearly against the basic canons of procedural fairness. It is also contrary to the principle of natural justice and the provisions of Army Rule 180. When Mr. Pundir or Col. V.S. Bhatti did not support the allegations before the COI, question of cross-examining them on these aspects did not arise at all. Moreover, the aforesaid approach depicts that COI, on mere allegations in the complaint, proceeded with the supposition that these allegations stand proved and onus was upon the Officer to prove his innocence. That cannot be countenanced.35. In the aforesaid backdrop, the only question is as to whether allegations could be treated as proved on the basis of apology letter dated September 22, 2007.36. First of all, this apology is not given by the Officer before the COI during the proceedings conducted by it. It was given to the complainant. In any case, this aspect can be ignored as the complainant had sent the copies of this apology letter to all the authorities including COI and, more importantly, the Officer has accepted having signed the said settlement. Therefore, it is an admitted document. However, the Officer had given his own version and circumstances in which the said letter was given. As already mentioned above, the circumstances do suggest that it was done to buy piece and give quietus to the matter, that too, with the intervention of a very senior Officer. The circumstances which are narrated by the Officer which led to giving the aforesaid letter have not been rebutted as neither the complainant nor Col. Bhatti or any other person came forward to give a different version of the circumstances which led to the said settlement between the Officer and the complainant. Insofar as letter of apology is concerned, it does not anywhere accepts the allegations of the complaint. It simply says that ‘do hereby apologises to Mr. D.S. Pundir resident of Village Khangesra, PO Kot, Distt Panchkula 134118 (Haryana) if it has caused him harassment and mental agony?.37. On the circumstances in which this settlement took place and apology given, there is an unrebutted version of the Officer only, on the record. Once that is to be kept in mind, it is not an unconditional apology. On the contrary, a particular pharascology was agreed upon, which was to the satisfaction of both the parties. In this background, it becomes important that the Officer has apologised ‘if? it had caused the complainant harassment and mental agony. Thus, it was not an unconditional apology. The Officer only meant that if his purported acts had adversely affected the complainant and his family members, he was apologising the same. Secondly, and more importantly, this letter of apology was given on the understanding that the complainant would be withdrawing his complaint. That is specifically mentioned in Para 2. Of course, the Officer also gave an assurance that there would not be any interference in the complainant?s personal life and the Officer would not cause future harassment/threatening. However, it is important to note that it is further mentioned that on his failure to abide by the aforesaid undertaking, Mr. Pundir would be free to initiate ‘fresh complaint? against the Officer on the same cause of action. Again, no doubt, this letter of apology states that it is given by the Officer out of his free will and without any pressure. However, it is also a matter of record that this meeting between the Officer and the complainant could be fructified with the good offices of Director General, Artillery A.S. Bajwa who had persuaded the Officer to give such an apology and bring the things acuitius. Not only that, the complainant acted upon the aforesaid understanding as he sent communication dated October 2, 2007 to the official that in view of the letter written by the Officer, the complainant was withdrawing his complaint. He specifically wrote that he had taken humanitarian approach thinking about family of the Officer and also the fact that the Officer was in the promotion list and, therefore, from his side, the matter ‘stands cleared and my presence in the COI is no longer required/necessary?.38. The cumulative effect of all the aforesaid factors including the circumstances in which the said letter of apology was given, it is difficult to term it as unconditional apology on which finding of guilt could have been returned against the Officer.39. To top it all, while giving the aforesaid findings, COI has referred to the ‘discreet inquiry? which had found the allegations to be correct. At the same time, this discreet inquiry was not proved before the COI. We fail to understand as to how it could become the basis of findings of the COI when no opportunity was given to the Officer to meet the same.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]TA No. 8 of 201317. Having regard to the aforesaid outcome of the two OAs, insofar as earlier decision of AFT dated February 18, 2014 passed inTA No. 8 of 2013is concerned, it is rendered infructuous. As mentioned above, in that order, the AFT has directed that the case of the Officer be reconsidered for the purpose of selection by the Review Board without taking into consideration Confidential Report for the year 2007-08. However, the question of reconsideration would depend upon the outcome of appeals by the Officer against the AFTs judgment dated May 29, 201730. Significantly, when the complainant received summons to appear before the COI even thereafter he sent another letter dated November 1, 2007 reiterating his earlier position and stated that said letter dated November 1, 2007 be treated as his statement and ‘it is reiterated that the matter may kindly be treated as closed from my end?31. Notwithstanding the above, the army authorities decided to proceed with the COI. The circumstances in which matter was settled between the Officer and the complainant, that too with the intervention of a very senior Officer Lt. Gen. A.S. Bajwa, it could have been given a quietus by the respondents. However, at the same time, it can also be observed that the respondents authorities were not bound by the settlement which took place between the Officer and the complainant. Since, it was thought that allegations were serious in nature and a discreet inquiry had also been held into the matter which also pointed out that prima facie there was some substance in those allegations, the army authorities were not precluded from proceeding with COI to find the truthfullness in the said allegations32. Having said that, it was for the respondents to prove the allegations. Burden was upon the authority to discharge initial onus as it had levelled the charges against the Officer. We have gone through the findings of COI which are placed on record. These findings categorically mention that insofar as Mr. Pundir is concerned, he had withdrawn his complaint by specifically stating that he did not want to pursue the same. The report also records that he did not depose in support of the allegations contained in his complaint. There is no other witness which was produced before the COI to prove those allegations33. Notwithstanding the same, the COI has come to the findings that allegations in the complaint stood proved. It has based its findings by taking into consideration the following two aspects:(a) The Officer has given an unconditional apology on September 22, 2007 to Mr. Pundir expressing regret over his action if they had caused him trouble and harassment and promising not to interfere directly or indirectly in the personal life of Mr. Pundir and his family members(b) The allegations in the complaint lodged by the complainant were not contested by the Officer during the proceedings of the COI. In this behalf, the report records as under:?13. The allegations in the complaint lodged by Mr. D.S. Pundir have not been contested by Col AD Nargolkar during the proceedings of the COI despite the effect of the allegations on his character and military reputation and a chance to cross examine both Mr. D.S. Pundir and Col. V.S. Bhatti under provisions of Army Rule 180. In his statement to the court and answers given to various questions asked by the Court, Col AD Nargolkar has cited technicalities that the complaint is not being pursued and is presently non existent.?34. The aforesaid approach is clearly against the basic canons of procedural fairness. It is also contrary to the principle of natural justice and the provisions of Army Rule 180. When Mr. Pundir or Col. V.S. Bhatti did not support the allegations before the COI, question of cross-examining them on these aspects did not arise at all. Moreover, the aforesaid approach depicts that COI, on mere allegations in the complaint, proceeded with the supposition that these allegations stand proved and onus was upon the Officer to prove his innocence. That cannot be countenanced36. First of all, this apology is not given by the Officer before the COI during the proceedings conducted by it. It was given to the complainant. In any case, this aspect can be ignored as the complainant had sent the copies of this apology letter to all the authorities including COI and, more importantly, the Officer has accepted having signed the said settlement. Therefore, it is an admitted document. However, the Officer had given his own version and circumstances in which the said letter was given. As already mentioned above, the circumstances do suggest that it was done to buy piece and give quietus to the matter, that too, with the intervention of a very senior Officer. The circumstances which are narrated by the Officer which led to giving the aforesaid letter have not been rebutted as neither the complainant nor Col. Bhatti or any other person came forward to give a different version of the circumstances which led to the said settlement between the Officer and the complainant. Insofar as letter of apology is concerned, it does not anywhere accepts the allegations of the complaint. It simply says that ‘do hereby apologises to Mr. D.S. Pundir resident of Village Khangesra, PO Kot, Distt Panchkula 134118 (Haryana) if it has caused him harassment and mental agony?37. On the circumstances in which this settlement took place and apology given, there is an unrebutted version of the Officer only, on the record. Once that is to be kept in mind, it is not an unconditional apology. On the contrary, a particular pharascology was agreed upon, which was to the satisfaction of both the parties. In this background, it becomes important that the Officer has apologised ‘if? it had caused the complainant harassment and mental agony. Thus, it was not an unconditional apology. The Officer only meant that if his purported acts had adversely affected the complainant and his family members, he was apologising the same. Secondly, and more importantly, this letter of apology was given on the understanding that the complainant would be withdrawing his complaint. That is specifically mentioned in Para 2. Of course, the Officer also gave an assurance that there would not be any interference in the complainant?s personal life and the Officer would not cause future harassment/threatening. However, it is important to note that it is further mentioned that on his failure to abide by the aforesaid undertaking, Mr. Pundir would be free to initiate ‘fresh complaint? against the Officer on the same cause of action. Again, no doubt, this letter of apology states that it is given by the Officer out of his free will and without any pressure. However, it is also a matter of record that this meeting between the Officer and the complainant could be fructified with the good offices of Director General, Artillery A.S. Bajwa who had persuaded the Officer to give such an apology and bring the things acuitius. Not only that, the complainant acted upon the aforesaid understanding as he sent communication dated October 2, 2007 to the official that in view of the letter written by the Officer, the complainant was withdrawing his complaint. He specifically wrote that he had taken humanitarian approach thinking about family of the Officer and also the fact that the Officer was in the promotion list and, therefore, from his side, the matter ‘stands cleared and my presence in the COI is no longer required/necessary?38. The cumulative effect of all the aforesaid factors including the circumstances in which the said letter of apology was given, it is difficult to term it as unconditional apology on which finding of guilt could have been returned against the Officer39. To top it all, while giving the aforesaid findings, COI has referred to the ‘discreet inquiry? which had found the allegations to be correct. At the same time, this discreet inquiry was not proved before the COI. We fail to understand as to how it could become the basis of findings of the COI when no opportunity was given to the Officer to meet the same.