U.O.I. (Through Its Secretary) vs Col. A.D. Nargolkar

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:

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 Division.

5) 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 4 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 merit.

6) 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 Brigadier.

7) 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 afresh.

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, 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 1. 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 1 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. 7 29, 2017 has also been dismissed. Against these orders, the Officer has filed Civil Appeal (arising out of Diary No. 14505 of 2018).

14) Since, challenge laid by the Officer in this OA pertains to imposition of punishment as a result of COI, we take note of the order of AFT in this case, in the first instance. The COI was conducted against the Officer on the basis of a complaint received from one Mr. Pundir who alleged that his daughter married to another Army Officer, namely, Col. Bhatti and she was being harrassed by the Officer who was sending her repeated messages and blackmailing her by demand of money with the threat that if she does not accede to his demands, he will make some photos public. While the COI was in progress, attempts were made by the Director General, Artillery at Army HQ to reach a settlement between the Officer and Mr. Pundir. Some kind of apology was given by the Officer, to buy peace. This document was produced before the COI. The COI ultimately found that the Officer was guilty of harrasing, blackmailing and having improper relationship with the wife of a subordinate Officer. After the show cause notice, punishment of censure in the form of 'Severe Displeasure (Recordable)' was imposed. The Officer had challenged the finding of the COI primarily on two grounds:

25) Mr. Maninder Singh, learned ASG placed strong refutation to the aforesaid submissions of the Officer. He referred to the complaint that was lodged by Mr. Pundir which contained very serious allegations. He pointed out that in the said complaint, it was alleged by Mr. Pundir that he, his wife, his daughter Mrs. Neelam Bhatti and her husband Col. V.S. Bhatti meted out atrocious treatment thereby causing them mental 2 (2009) 2 SCC 570 3 1994 Supp (2) SCC 391 17 torture, humiliation and harrassment. It was alleged that during the period Officer made amorous advances towards Mrs. Neelam Bhatti, which she resisted. The Officer was a senior Officer of Col. Bhatti. It was further alleged that the Officer thereupon coerced and trapped Mrs. Neelam Bhatti into an improper relationship, thus, stealing the affection of a subordinate Officer’s wife. It was also alleged that the Officer misused his official position as Colonel and laid a calculated trap to blackmail Col. Bhatti and Mrs. Bhatti and subsequently the Officer started sending SMS messages with a view to defame, blackmail and for extortion. In the complaint, it is alleged that the Officer has also threatened to physically harm the complainant and continued calling and sending messages to his daughter i.e. Mrs. Bhatti, impinging on her privacy by allegedly threatening to expose her by way of incriminating material such as allegedly taken photographs etc. He was alleged to be blackmailing the family by demanding money, failing which he was threatening to make the pictures public.

28) In a case like this, before we proceed to discuss the contentions raised by the Officer and reply thereto by the ASG, it is necessary to go 19 into the circumstances under which the so-called settlement took place between the Officer and Mr. Pundir and the nature of apology written by him. The Officer had received a legal notice from Mr. Pundir on August 2, 2007 alleging harrasment/mental torture etc., unwarranted telephone calls to him as well as his family members. The Officer had denied these allegations. According to him, on an earlier occasion when this issue was raised up by Mr. Pundir, he suggested restraint, considering the advance age and health of Mr. Pundir who is well known to him and thereafter Mr. Pundir tendered an apology in February, 2007. However, when the promotion of the Officer was declared, Mr. Pundir flared up the issue again by sending legal notice dated August 2, 2007. On September 3, 2007, the complainant had forwarded this complaint to the army authorities. On receipt of this complaint, a ‘discreet inquiry’ was ordered and because of this reason, promotion of the Officer was withheld, pending discipline and vigilance clearance which is mandatory for according such promotion. When such a discreet inquiry was going on, simultaneously there were some talks of settlement between Mr. Pundir and the Officer. Version of the Officer is that some talks took place between Mr. Pundir and Director General of Artillery on September 11, 2007. According to him, Lt. Gen. A.S. Bajwa advised the Officer and his wife to meet the complainant and his wife to iron out the differences. He also advised the Officer to tender a simple apology to the 20 complainant to satisfy his ego. The meeting, thus, took place at Panchkula on September 22, 2007. The Officer has further stated that a day before i.e. on September 21, 2007, the Director General, Artillery had amost ordered him to give unconditional apology. The Officer has further alleged that though he refused to sign the initial draft prepared by the complainant which was damaging, finally it was agreed that the Officer gives a conditional apology on which the complaint would be withdrawn.

The witness and my wife Mrs. Rohini Nargolkar have signed in my presence.”

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.

40) For the aforesaid reasons, we come to a conclusion that the COI 27 failed to adhere to the procedure laid down in Army Rule 180; it’s findings are based on the material which could not be relied upon without its formal proof (like the allegations in the complaint or the report of discreet inquiry); and there is a violation of principle of natural justice. We, thus, allow the appeals of the Officer and set aside the impugned judgment of the AFT and also the punishment of 'Severe Displeasure (Recordable)'.

41) As a consequence, insofar as promotion of the Officer to the post of Brigadier is concerned, he would be entitled to the same as the Officer was found fit for the said promotion but it was withheld only because of the contemplation and subsequently his promotion was ultimately denied during the pendency of COI. Once this stigma stands removed, the Officer becomes entitled to get his rank of Brigadier for which he was empanelled by the respondents themselves. The orders shall accordingly be issued giving the Officer promotion to the rank of Brigadier from the date he was entitled thereto. Since, he has retired in the meantime, the Officer shall be entitled to the arrears of salary to the post of Brigadier. He will be treated as retired as Brigadier and, therefore, shall be entitled to terminal benefits as Brigadier including his pension. Arrears of salary and pension shall be worked out within a period of three months and given to the Officer.

42) Insofar as appeal of the UOI is concerned, it does not survive and is, thus, disposed of as such.

OCTOBER 24, 2018.