2018 Supreme(SC) 1090

SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
UNION OF INDIA & ANR. – APPELLANT(S)
VERSUS
COL. A.D. NARGOLKAR & ORS. – RESPONDENT(S)
CIVIL APPEAL NO. 10686 of 2018 (@ Civil Appeal Diary No. 27176 of 2014) WITH CIVIL APPEAL NO. 010693 -010702 of 2018 (@ Civil Appeal Diary No. 14505 of 2018)
Decided On : 24-10-2018

IMPORTANT POPINTS
Settlement arrived between the complainant and the officer did not bind the Army. Hence Army was not precluded from proceeding with COI.
An officer cannot be held guilty on the basis of a complaint that was withdrawn when the complainant did not appear and depose before COI, conditional apology of the officer and the ‘discrete enquiry’ not proved before the COI.

Headnote:(a) Army Rules – Rule 180 cf Section 8(b) of the Commissions of Inquiry Act, 1952 – A complaint against an Army Officer – Officer giving letter of apology and undertaking to the complainant – Settlement arrived – Such settlement not binding on Army – Army holding discrete enquiry and finding prima facie some substance in the complaint – Held Army was not precluded from proceeding with COI notwithstanding the settlement arrived between the officer and the complainant. (Para 31)

       (b) Army Rules – Rule 180 – COI on basis of a complaint and subsequently discrete enquiry – Complainant not participating in COI, in fact withdrawing his complaint – No other witness – Notwithstanding, COI coming to conclusion that allegations in the complaint stood proved – Not tenable. (Para 32, 33, 34)

       OA No. 52 of 2013; 1994 Supp (2) SCC 391 – Referred

       (c) Army Rules – Rule 180 – Complaint of inappropriate behaviour, humiliation and harassment to a junior officer, his wife and his in-laws – Officer complained against giving apology to complainant and settling the issue – Circumstances to before COI – complainant sending copies to all concerned including COI – Officer complained of acknowledging having signed the apology – apology given to buy piece and give quietus to the matter – That too with the intervention of a very senior Officer – Not rebutted – Apology not accepting the allegations of the complaint – Apology given on understanding that complainant will withdraw his complaint – Complainant honouring his undertaking and withdrawing his complaint – Held, apology was not unconditional on which finding of guilt could have been returned against the Officer – Further, ‘discrete enquiry’ not proved before COI – Could not be nasis for holding the officer blameworthy – Held procedure in Rule 180 not followed – Proceeding vitiated. (Para 36, 37, 38, 39, 40)

       Facts of the case:

       One Shri D.S. Pundir submitted a written complaint against the respondent-Officer to the Chief of Army Staff containing 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. Thereupon the Officer 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 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 which 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. ACR of the respondent was initiated on October 16, 2008 by Brigadier V.V. Raghavan and reviewed by Major General O.P. Soni. The Officer challenged the said ACR by filing Statutory Complain which was rejected by the Central Government on June 16, 2009.

       Thereafter, the Officer approached the Armed Forces Tribunal (AFT) challenging 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 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 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...”

       Finding of the Court:

       The Officer is entitled to promotion as Brigadier.

       Result: Appeals of the Officer allowed. Appeal of UoI dismissed.