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

3. The aforesaid proceedings were filed by Col. A.D. Nargolkar (now retired) (hereinafter referred to as the ‘Officer?) who was commissioned in the Army. The other party is Union of India, which would be referred to as UOI. The genesis behind these appeals can be traced by the following factual events:The Officer was commissioned in the Army in the year 1979 in the Corps of Artillery. He was promoted to the rank of Colonel in due course of time. From August 01, 2006 to May 31, 2007, the Officer was on study leave. On May 21, 2007, he was considered by No. 2 SB during January 2007 as a 1979 Fresh Batch Artillery and was empanelled for promotion to the rank of Brigadier subject to availability of vacancies, continued satisfactory performance and medical fitness4. On termination of the study leave on May 31, 2007, the Officer was posted as Additional Officer, HQ 41 Artillery Division. Posting-cum-Pormotion Order was issued during May, 2007 whereby he was required to report at Ferozpur, Punjab on June 27, 2007 as Commander, 7 Artillery Brigade. The Officer requested for posting either at a Field Station or to Aurangabad on the ground of children?s education. On this request, posting of the Officer for Ferozpur was cancelled and he continued as Additional Officer, HQ 41 Artillery Division5. While he was working in that capacity, one Shri D.S. Pundir submitted a written complaint dated July 22, 2007 against the Officer to the Chief of Army Staff. The complaint contained the allegations of stealing affection of brother Officer?s wife (wife of Col. V.S. Bhatti, daughter of Shri D.S. Pundir) blackmailing and harrassment. On the said complaint, a Court of inquiry (COI) was ordered vide HQ 41 Artillery Division convening order dated September 14, 2007. As per the UOI, when the Officer came to know about the convening of the COI against him, he went to Panchkula (Haryana) from Pune and tendered a written apology. A written settlement was entered into with Shri D.S. Pundir, the complainant on September 22, 2007. The Officer has its own version about it, which would be stated at the relevant stage. The COI was held and it found the Officer blameworthy for which he was awarded Severe Displeasure (Recordable) by GOC-in-C of Southern Command on June 5, 2008. Award of Severe Displeasure (Recordable) to the Officer was construed as ‘drop in performance? resulting in cancellation of his earlier promotion order. As a consequence, the Officer was considered by No.2 Selection Board as Special Review (DIP) case in October, 2008 and was not empanelled for the rank of Brigadier. In the meantime, ACR of the Officer for the year 2007-2008 also became due on September 1, 2008. ACR of the respondent was initiated on October 16, 2008 by Brigadier V.V. Raghavan and reviewed by Major General O.P. Soni in terms of AO No. 45/2001/MS which lays down policy on initiation of ACRs of Army Personnel. The Officer challenged the said ACR by filing Statutory Complaint. The Statutory Complaint was rejected by the Central Government on June 16, 2009 being devoid of merit6. Thereafter, the Officer approached the Armed Forces Tribunal (AFT) by filing two Original Applications (OAs). In these OAs, he challenged the award of Severe Displeasure (Recordable) and consequent non-empanellment by filing separate OAs Nos. 50 and 53 of 2009 before AFT, Regional Bench at Mumbai. The AFT dismissed the said OAs being devoid of merits. Dissatisfied with the said dismissal of OAs by AFT, he filed writ petitions bearing Nos. 13360 and 13367 of 2009 before the High Court of Delhi at New Delhi. Insofar as these writ petitions before the Delhi High Court are concerned, vide its order dated July 9, 2012, the High Court quashed the COI proceeding held against the Officer and directed the UOI to promote him to the rank of Brigadier7. It may be mentioned at this stage itself that against the said order of the High Court, the UOI filed two Special Leave Petitions in which leave was granted and they were converted into civil appeals. Those civil appeals were finally heard and vide judgment dated March 10, 2014, order of the High Court was set aside and OA Nos. 50 and 53 of 2009 were directed to be heard afresh8. As the Officer was also aggrieved by the rejection of his Statutory Complaint against ACR for the period September 1, 2007 to August 31, 2008, he filed another OA No. 15 of 2010 before the AFT, Lucknow Bench. The said OA was subsequently transferred to AFT, Regional Bench, Mumbai and renumbered as TA No. 8/20139. As far as T.A. No. 8 of 2013 of the Officer is concerned, it was heard by AFT, Mumbai and disposed of vide order dated July 4, 2013 holding that ‘for all practical purposes, the said ACR has lost all importance and value?. According to the AFT, the question now was only of academic interest and it was not necessary to consider the same on merits. The Officer filed review application seeking review of the aforesaid order emphasising that matter had not become infructuous and it needed to be considered on merits. This review petition was partly allowed by order dated February 18, 2004 by the AFT. In this order, the AFT has directed that the Confidential Report for the year 2007-08 shall not be taken into consideration for the purpose of selection by Review Board. The AFT held that as the Officer was due for consideration for selection to the rank of Brigadier in the Review Board held in February, 2012 and it appears that because of the said ACR of 2007-08, he could not be selected. On that basis, it has directed that his case be reviewed afresh as if it is being taken up in February, 2012 itself without taking into consideration the ACR of 2007-08 and in case the Officer is selected, he would be given all the consequential benefits. The AFT in the impugned order has also made the observations ?...in our opinion, the Confidential Report for the year 2007-08 was not written objectively, impartially and fairly as it was influenced by the proceedings of the COI and its results...?10. The UOI sought leave to appeal. The said order under Section 31 of the Armed Forces Tribunal Act, 2007 has also been rejected by the AFT on March 25, 201411. Against these orders, the UOI has filed its Civil Appeal (arising out of Diary No. 27176 of 2014)12. This appeal came up for hearing on February 23, 2016 when, during arguments, it was noticed that O.A. Nos. 50 and 53 of 2009 were still pending before the AFT, Regional Bench, Mumbai (After remand order passed by this Court, in which the Officer had challenged award of censure and stoppage of promotion by removal of his name from the select list for promotion to the next rank of Brigadier in the Indian Army, the matters were sent back to AFT). In these circumstances, the Court directed the AFT to take up the matter as expeditiously as possible and dispose of the same. Pursuant to these directions, the AFT, Mumbai has decided those OAs vide its order dated May 29, 2017. By the said order, the AFT has dismissed the OAs. Thereafter, by another order dated December 13, 2017, review application of the Officer seeking review of aforesaid order dated May 29, 2017 has also been dismissed. Against these orders, the Officer has filed Civil Appeal (arising out of Diary No. 14505 of 2018)This is how, the appeals of UOI as well as the Officer, have been heard together, having regard to the commonality of the issues involved therein.

Reasoning: 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.