1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  10686   of 2018 (@ Civil Appeal Diary No. 27176 of 2014)  

UNION OF INDIA & ANR. .....APPELLANT(S)

VERSUS

COL. A.D. NARGOLKAR & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 010693 - 010702 of 2018 (@ Civil Appeal Diary No. 14505 of 2018)  

J U D G M E N T

A.K. SIKRI, J.

Delay condoned.  Appeals admitted.

2) These are  civil  appeals arise out  of   different  orders passed by the

Armed  Forces  Tribunal  (AFT),  Regional  Bench  at  Mumbai  in  two

different proceedings viz. Transfer Application No. 8 of 2013 and Original

Application Nos. 50 and 53 of 2009.   However, the parties involved in

these  appeals  are  same  and  there  is  continuity  of  events  and

developments that have taken place giving rise to these proceedings.

For these reasons, these appeals are clubbed and heard together, which

2

we intend to decide by this common judgment.

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 fitness.   

4) 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

Division.  

3

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.  

5

8) 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. 8/2013.   

9) 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

6

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, 2014.

11) 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,  Mumbai1.   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).   

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.

13) It  may be recapitulated,  at  this  stage,  that  the Officer  had filed

three proceedings.  First was OA No. 50 of 2009 whereby he claimed

promotion to the rank of Brigadier.  In the second OA i.e. 53 of 2009, the

Officer prayed for quashing of the punishment of 'Severe Displeasure

(Recordable)' imposed upon him after holding COI.  Third was OA No.

15  of  2010  which  was  filed  before  AFT,  Lucknow  Bench.   It  was

transferred to AFT, Mumbai Bench and renumbered as TA No. 8 of 2013,

whereby ACR for the year 2007-08 was challenged.  Though, these OAs

were filed before the Principal Bench, New Delhi and were dismissed

initially, writ  petitions filed by the UOI against  the said orders of AFT

were allowed.  The order of the High Court was set aside by this Court

and the matters were remitted back to the AFT for fresh consideration.

However, these OAs were marked to Mumbai Bench of AFT where they

were renumbered as TA Nos. 5 of 2014 and 6 of 2014.  Insofar as third

OA, namely, TA No. 8 of 2013 is concerned, the AFT has set aside the

adverse ACR of the Officer for the year 2007-08 and directed that the

Officer  be  considered  for  selection  for  the  rank  of  Brigadier  by  the

8

Review Board.  Thus, it would, therefore, be appropriate to take note of

the  reasons  given  by  the  AFT  in  respect  of  each  of  the  aforesaid

matters.

OA No. 53 of 2009 (renumbered as TA No. 6 of 2014)

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:

(i) There was a violation of Army Rule 180 in conducting the inquiry

9

inasmuch as ‘full opportunity’ was not afforded to the Officer, which is

the mandate of the said Rule.

(ii) The COI wrongly relied upon the so-called apology letter of  the

Officer.  He narrated the circumstances under which the said letter was

given and also argued that,  in any case, it  was not an unconditional

apology.

15) The AFT repelled both the contentions.  It is held that the Officer

had admitted his guilt/misconduct by tendering the apology to Mr. Pundir

and  he  was now trying  to  wriggle  out  from the  same on  suspicious

grounds.  His plea that he was forced to admit his guilt and the apology

was not  voluntarily,  was  an  afterthought.  Insofar  as  argument  of  the

Officer predicated on the Army Rule 180 is concerned, the AFT has held

that  the  provisions  were  complied  with  as  the  Officer  was  afforded

opportunity to be present throughout and cross-examine the witnesses,

to record statement and to examine witnesses in defence.  It is further

observed by the AFT that the Officer had been issued show cause notice

and  he  had  not  been  able  to  give  any  plausible  explanation  for  his

behaviour.  With the aforesaid findings, TA No. 6 of 2014 is dismissed.

OA No. 50 of 2009 (renumbered as TA No. 5 of 2014)

16) Once  the  AFT  held  that  punishment  of  'Severe  Displeasure

(Recordable)'  was  awarded  to  the  Officer  and  it  was  valid  for  three

10

years,  there was no question of  promoting the Officer  to  the rank of

Brigadier during the pendency of the said punishment.  On that basis,

second OA is also dismissed.

TA No. 8 of 2013  

17) Having regard to the aforesaid outcome of the two OAs, insofar as

earlier decision of AFT dated February 18, 2014 passed in TA No. 8 of

2013 is 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 AFT's judgment dated

May 29, 2017.   

18) In the aforesaid background, it would be apt to first consider the

subject  matter of  O.A. No. 53 of  2009 (renumbered as T.A. No. 6 of

2014) inasmuch as further course of action to be taken in respect of

other two OAs would depend upon the outcome of the appeal preferred

against the judgment of AFT, Mumbai in this OA.

19) We may point out at the outset that the arguments of the Officer,

who  appeared  in  person,  remained  the  same  which  were  advanced

before the AFT as well.  He has also filed written submissions on the

11

same lines.  His first submission was based on Rule 180 of the Army

Rules.   According to  him,  Army Rule  180 is  blatantly violated in  the

Inquiry, vitiating it.  The Rule is mandatory and statutory; duly invoked in

the Inquiry against him in December, 2007.  Use of words ‘must’ and

‘shall’ be seen.  Onus on Inquiry Officer to give ‘full and clear notice’ is

specific.  ‘Full opportunity’ and not ‘Reasonable opportunity’ specified;

being pari materia to Section 8(b) of the Commissions of Inquiry Act,

1952.  AFT acknowledged it as mandatory as in Lt. Col. R.D. Sharma v.

UOI in OA No. 52 of 2013 dated September 12, 2013 by AFT, Chennai.

The Rule reads as follows:

“180.  Procedure when character of a person subject to the Act is involved.  Save in the case of a prisoner of war who is still absent, whenever any inquiry affects the Character or Military Reputation of a person subject to the Act, full opportunity must be afforded to such  person  of  being  present  throughout  the  Inquiry  and  of making any statement, and of giving any evidence he may wish to make  or  give,  and  of  cross-examining  any  witness  whose evidence in his opinion, affects his character or military reputation and  producing  any  witnesses  in  defence  of  his  character  or military reputation.  The Presiding Officer of the court  shall  take such steps as may be necessary to ensure that any such person so affected and not previously notified receives notice of and fully understands his rights, under this Rule.”

20) Explaining his submission based on the aforesaid Rule, the Officer

argued that there was a severe  de facto  prejudice caused to him with

the Inquiry Officer taking on record the alleged findings of the ‘discreet

inquiry’ by Military Intelligence, that too, behind the back of the Officer.

The finding of guilt by the Inquiry Officer is based on the said inquiry

12

report.   In addition, the Inquiry Officer had taken six more prejudicial

documents, covertly on record, thereby violating Army Rule 180.  The

Officer went to the extent of alleging that above violation is not a simple

illegality.  It amounts to fraud because Inquiry Officer factually and on

record, assured him on last day of inquiry that no adverse evidence was

in  hand,  when  he  factually  had  this  ‘Discreet  Inquiry’  report  in  his

custody on November 10, 2007.  He assured that,  if  so received, he

would give ‘full  opportunity’  to  him to defend.   Post  such assurance,

Inquiry Officer then coverty took it on record, to indict him, which is a

deliberate, planned fraudulent action, abetted by hierarchy.   

21) His  another  submission  was  that  after  settlement  arrived  at

between the Officer and the complainant on September 22, 2007, the

complainant had withdrawn its complaint.   In spite thereof,  suo motu

cognizance  of  withdrawal  complaint  was  taken,  without  notice  that

Inquiry  Officer  now  was  a  Judge  as  well  as  the  Prosecutor.   This,

according to an Officer, is a serious deviation from a legal procedure and

also  violative  of  Army  Rule  180.   It  is  argued  that  this  suo  motu

cognizance is without jurisdiction.  That is by resorting to Section 134 of

the Army Act which allows taking of judicial notice in Court Martials and

not COI.   

22) His further submission was that the COI stood vitiated because of

13

the following reasons as well:

(a) Subversion of favourable evidence by Inquiry Officer: It is argued

that critical  evidence of  vindication of  the Officer by husband of  Mrs.

Bhatti is suppressed.  In fact, it is converted to read the opposite of what

he had deposed.   He referred to  the following portion from the said

deposition:

“Question No. 13: The complaint has certain allegations that Col AD Nargolkar took advantage of his position as Col Adm to lay a calculated trap  to  blackmail  you  and Mrs  Neelam Bhatti.   Is  it true?

Answer No. 13: No he never blackmailed me.

Question No. 14: The complaint states that  Col AD Nargolkar has stolen the affections of Mrs Neelam Bhatti.   Is it true?

Answer No. 14: No.

Question No. 15: Do you have any complaints against  Col AD Nargolkar?

Answer No. 15: As of now I have no complaints but however in future I am aware of the options open to me.

Question No. 16: Did you ever have any complaints against  Col AD Nargolkar?

Answer No. 16: No.

Question No. 17: The court showed Exhibit F to Col VS Bhatti and asked if he recognizes the same and asked him as to when he received it?

Answer No. 17: I received two copies of the note addressed to me one at my unit address and one at my Ive stn.   The copy of this had also been sent to Cdr 6(I) Armd Bde who mentioned it to me. The note addressed to Mrs Neelam Bhatti  was received a few days  later.   No  enclosures  were  received  along  with  both  the notes.

14

Question No. 18: What was your reaction on receiving the notes?

Answer No. 18: I was disturbed on receiving the notes and since it was an anonymous letter, I was disturbed as to who could do it.

Question  No.  19:  You  must  have  carried  out  analysis  of  who would have been these notes.  Do you have any enemies who could have done this?

Answer No. 19: I have no enemies.

Sd/- x-x-x-x-x-x01Dec 2007 Presiding Officer ______________

(IC-35581F Brig C Prakash)”

 23) On this, Inquiry Officer has recorded the following findings which,

according to the Officer, are perverse:

“11. Mr. DS Pundir  as well  as Col  VS Bhatti  have refused to elaborate on  the  allegations  contained in  the  complaint.   They have either offered no comments or asked the Court to draw its conclusion.  Mr. DS Pundir has quoted the agreement settlement for being unable to elaborate on the allegations.

12.  Col VS Bhatti, in his settlement refused to confirm or deny the allegations against Col AD Nargolkar.  At the same time, he did not state that allegations in the complaint are false.  He stated that the circumstances leading to complaint  are of  very private and delicate nature which can affect the dignity of him and his family. He  has  referred  to  exercising  future  options  against  Col  AD Nargolkar if the need arose.”

(b) Secret  Meeting  by  Inquiry  Officer  with  Opposite  Wintesses,

executed on day prior to Inquiry.  It  was reported to hierarchy by the

Officer,  but  was  not  acted  upon.   Submission  is  that  judicial  trust,

thereby, stands violated  by the  Inquiry  Officer  acting in  his  ex-officio

capacity.

(c) Conspiracy:  The  Officer  was  not  given  any  Notice  in  Inquiry,

15

especially in respect of 3rd charge of ‘trying to circumvent law’ by his

having given a conditional  apology to complainant for  complainant to

withdraw his complaint;  and also Army’s line of thinking that ‘apology

shows a gulity mind’  as it  was the most important crutch to hold the

Officer  guilty.   The  Officer  was  never  afforded  reasonable  nor  ‘full

opportunity’ to rebut competent authority’s line of thinking that apology is

‘mens rea’ and thereby Army Rule 180 violated again.

(d)   Officer was never told in Inquiry what exact adverse issues he had

to meet.  No clear questions were posed i.e. “what do you have to say

about (a) stealing affections of Mrs Bhatti or (b) harassing Mr Pundir by

calls/SMSs  or  (c)  ‘trying  to  circumvent  Law’ by  way  of

apology/settlement”.

(e)  Convening Order for Inquiry was issued on September 17, 2007 in

Pune  covertly,  behind  the  back,  while  the  Officer  and  his  wife  were

called to Delhi by DG, Artillery for apology/settlement from September

18, 2007 to  September 23, 2007.  Convening Order was supplied to

appellant on September 24, 2007 on return to Pune.  This was clearly

untenable.

(f)  Members of Inquiry did not assemble post last day of depositions, for

collective application of mind.  They signed on the Inquiry Report blindly.

Inquiry Report is vitiated thereby.

16

(g)  Competent authority did not consider the exhaustive 250 page reply

to Show Cause Notice dated April 14, 2008, when awarding ‘Censure’.

This also depicts non-application of mind.

(h)  ‘Censure’ itself is an illegal and impermissible penalty as it is not

prescribed by law or Army policy.  Court Martial was shield away from, to

avoid fresh opportunity to cross-examine witnesses.  

(i)  Complaint authenticated but the contents thereof were not proved in

the inquiry.  Mr Pundir merely authenticated complaint as a document.

He did not prove it’s contents as required in law. Roop Singh Negi v.

Punjab National Bank & Ors.2 was relied upon.

24) The Officer also referred to the following portion of the judgment in

Managing Director, E.C.I.L., Hyderabad v.  B. Karunakar (II)3 on the

principle that violation of natural justice principle vitiates enquiry.

 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.

26) Argument of the learned ASG was that the aforesaid behaviour of

an  Army  Officer  qua  junior’s  wife  is  treated  as  reprehensible  and

deprecable in the Army discipline.  Obviously, therefore, when such a

complaint was received, it became a disciplinary case according to law

applicable to army personnel.   It  was,  for  this  reason,  that  COI was

constituted  and,  therefore,  the  Officer  cannot  impute  unnecessary

18

motives in taking disciplinary action against him and a decision to initiate

such  action  was  based  on  the  allegations  contained  in  the  said

complaint.

27) Mr. Maninder Singh further submitted that all the arguments raised

by the  Officer  are  of  no  consequence as  the  findings  of  the  Inquiry

Officer  were  based  on  the  admission  of  guilt  by  the  Officer,  which

according  to  him,  is  the  most  important  aspect  of  the  case  and the

Officer is trying to sidetrack the same.  Submission was that the Officer

was not coerced to admit his guilt and rather it was his voluntary act.

Even  otherwise,  provisions  of  Army  Rule  180  were  complied  with.

Before  taking  action,  show cause  notice  was  also  issued to  him on

March 7, 2007 to which he had submitted his detailed reply on April 14,

2007  which  was  duly  considered  and  it  was  decided  to  award

punishment of 'Severe Displeasure (Recordable)' having regard to the

serious nature of misconduct.  He submitted that request of the Officer

to reassemble the inquiry was totally uncalled for and, therefore, rightly

rejected.  The learned ASG referred to various passages from the order

of the AFT wherein the contentions of the Officer have been rejected and

supported the reasoning given by the AFT.

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.

29) At this stage, without going into the respective versions which led

to writing of the apology letter by the Officer on September 22, 2007, it

may be necessary to reproduce the language of apology letter:

“ LETTER OF APOLOGY

1.  I,  IC 38032M Col AD Nargolkar resident of E-8/12, Salunke Vihar, Kondhwa, Pune 411048 (Maharashtra) do hereby apologize to  Mr  DS Pundir  resident  of  Village  Khangesra,  PO Kot,  Distt Panchkula  134118 (Haryana)  if it  has  caused him harassment and mental agony.

2.  I understand that Mr DS Pundir is withdrawing his complaint from Army and Civil authorities on my undertaking and assurance of  no  interference  in  his  personal  life  and  cause  future harassment/threatening.  On my failure to abide by this letter of apology and the compromise letter, Mr DS Pundir shall have the liberty to initiate a fresh complaint against me on the same cause of action.

3.  I am liable for a disciplinary action from Army authorities as well as from Civil authorities in case I ever violate my undertaking of no communication, contact  or interference of  any sort  in the personal life of Mr. D.S. Pundir.

21

4.   I  am giving this  letter  of  apology on my own free will  and without any pressure of any kind from anyone.  I will not go back on my undertaking and will not seek any kind of compensation or claim at a later stage.

5.  I am signing this document in the presence of my wife Mrs Rohini Nargolkar and witness Mr Rajeev Anand :

a. Mrs. Rohini Nargolkar Signature -----------------

b. Mr Rajeev Anand Signature -----------------

6.  The above letter of apology has been read and understood by me and it has been prepared on my instructions which are true and correct.   I  understand to abide by the above undertakings. The witness and my wife Mrs. Rohini Nargolkar have signed in my presence.”

30) 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

22

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 allegations.   

32) 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 allegations.  In fact, the

COI report records as under:

“11. Mr. DS Pundir  as well  as Col  VS Bhatti  have refused to elaborate on  the  allegations  contained in  the  complaint.   They have either offered no comments or asked the Court to draw its conclusion.  Mr. DS Pundir has quoted the agreement settlement for being unable to elaborate on the allegations.

12.  Col VS Bhatti, in his settlement refused to confirm or deny the allegations against Col AD Nargolkar.  At the same time, he did not state that allegations in the complaint are false.  He stated that the circumstances leading to complaint  are of  very private and delicate nature which can affect the dignity of him and his family. He  has  referred  to  exercising  future  options  against  Col  AD Nargolkar if the need arose.”

33) Notwithstanding the same, the COI has come to the findings that

23

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

24

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,

25

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

26

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.

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.

28

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

is, thus, disposed of as such.   

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; OCTOBER 24, 2018.