Q: Describe the citation of U.O.I. (Through Its Secretary) vs Col. A.D. Nargolkar on 24 October, 2018 ?

Ans: 

U.O.I. (Through Its Secretary) vs Col. A.D. Nargolkar on 24 October, 2018

In instant case, proceedings were filed by Col. A.D. Nargolkar (now retired) ('Officer') who was commissioned in Army. Officer had received a legal notice from Mr. Pundir on August 2, 2007 alleging harassment/ mental torture etc., unwarranted telephone calls to him as well as his family members. Officer had denied these allegations. As per UOI, when Officer came to know about convening of Court of Inquiry (COI) against him, he tendered a written apology. COI was held and it found the Officer blameworthy for which he was awarded 'Severe Displeasure (Recordable)'. Award of 'Severe Displeasure (Recordable)' to Officer was construed as 'drop in performance' resulting in cancellation of his earlier promotion order. As a consequence, Officer was not empanelled for rank of Brigadier. Officer approached Armed Forces Tribunal (AFT) by filing two Original Applications (OAS). AFT dismissed said OAS. Writ petition was filed before High Court. High Court vide its order quashed COI proceeding held against Officer and directed UOI to promote him to rank of Brigadier. Officer had filed three proceedings. First was OA No. 50 of 2009 whereby he claimed promotion to rank of Brigadier. In second OA i.e. 53 of 2009, Officer prayed for quashing of punishment of 'Severe Displeasure (Recordable)' imposed upon him after holding COI. Third was OA No. 15 of 2010 which was filed before AFT. Though, these OAs were filed before Principal Bench, New Delhi and were dismissed initially, writ petitions filed by UOI against said orders of AFT were allowed. Order of High Court was set aside by this Court and matters were remitted back to AFT for fresh consideration. Present civil appeals arose out of different orders passed by Armed Forces Tribunal (AFT), in two different proceedings viz. Transfer Application No. 8 of 2013 and Original Application Nos. 50 and 53 of 2009.

The honourable Supreme Court held while disposing of the appeal: 

Burden was upon authority to discharge initial onus as it had levelled charges against Officer. Findings of COI categorically mentioned that, insofar as Mr. Pundir was concerned, he had withdrawn his complaint by specifically stating that, he did not want to pursue the same. Report also recorded that, he did not depose in support of allegations contained in his complaint. There was no other witness which was produced before COI to prove those allegations. 

When Mr. Pundir or Col. V.S. Bhatti did not support allegations before COI, question of cross-examining them on these aspects did not arise at all. Moreover, approach depicts that, COI, on mere allegations in complaint, proceeded with supposition that,these allegations stand proved and onus was upon Officer to prove his innocence. That could not be countenanced. 

Apology was not given by Officer before COI during proceedings conducted by it. It was given to complainant. Complainant had sent copies of this apology letter to all authorities including COI and, more importantly, Officer had accepted having signed said settlement. Therefore, it was an admitted document. 

On circumstances in which settlement took place and apology given, there was an un-rebutted version of Officer only on record. It was not an unconditional apology. Officer only meant that, if his purported acts had adversely affected complainant and his family members, he was apologising same. This letter of apology was given on understanding that, complainant would be withdrawing his complaint. Officer also gave an assurance that, there would not be any interference in complainant's personal life and Officer would not cause future harassment/threatening. However, it was further mentioned that, on his failure to abide by aforesaid undertaking, Mr. Pundir would be free to initiate 'fresh complaint' against Officer on same cause of action. Again, no doubt, this letter of apology stated that, it was given by Officer out of his free will and without any pressure. Not only that, complainant acted upon aforesaid understanding as he sent communication to official that, in view of letter written by Officer, complainant was withdrawing his complaint. 

Cumulative effect of all factors including circumstances in which said letter of apology was given, it was difficult to term it as unconditional apology on which finding of guilt could have been returned against the Officer.

COI had referred to 'discreet inquiry' which had found allegations to be correct. At same time, this discreet inquiry was not proved before COI. 

COI failed to adhere to procedure laid down in Army Rule 180. It's findings were based on material which could not be relied upon without its formal proof (like allegations in complaint or report of discreet inquiry); and there was a violation of principle of natural justice. Appeals of Officer allowed and impugned judgment of AFT and also punishment of 'Severe Displeasure (Recordable)' was set aside.

As a consequence, insofar as promotion of Officer to post of Brigadier was concerned, he would be entitled to same as Officer was found fit for said promotion but it was withheld only because of contemplation and subsequently his promotion was ultimately denied during pendency of COI. Once this stigma stand removed, Officer became entitled to get his rank of Brigadier for which he was empanelled by Respondents themselves. Since, he had retired in meantime, Officer shall be entitled to arrears of salary to post of Brigadier. He would be treated as retired as Brigadier and, therefore, shall be entitled to terminal benefits as Brigadier including his pension.

x