Supreme Court quashes ‘Severe Displeasure’ penalty and orders promotion for Army Officer: Union of India vs. Col. A.D. Nargolkar (2018)

Introduction

Date of the Judgment: 24 October 2018

Citation: 2018 INSC 963

Judges: A.K. Sikri, J., Ashok Bhushan, J.

Can an Army officer be penalized based on a Court of Inquiry (COI) that did not follow proper procedure? The Supreme Court of India recently addressed this critical question in a case involving Col. A.D. Nargolkar. The core issue revolved around whether a ‘Severe Displeasure (Recordable)’ penalty was valid when the COI’s findings were based on flawed procedures and a questionable apology letter. The judgment was delivered by a two-judge bench comprising Justice A.K. Sikri and Justice Ashok Bhushan.

Case Background

Col. A.D. Nargolkar, the officer, was commissioned into the Army in 1979 and was promoted to the rank of Colonel. After a period of study leave from August 1, 2006, to May 31, 2007, he was empanelled for promotion to Brigadier in May 2007. However, his posting to Ferozpur was cancelled after he requested a posting closer to his children’s school. While serving as Additional Officer, HQ 41 Artillery Division, a complaint was filed against him by Shri D.S. Pundir on July 22, 2007, alleging harassment and blackmail of his daughter, who was married to another Army officer, Col. V.S. Bhatti.

A Court of Inquiry (COI) was convened on September 14, 2007, following the complaint. The officer allegedly tendered a written apology on September 22, 2007, to Shri D.S. Pundir. The COI found the officer blameworthy, leading to a ‘Severe Displeasure (Recordable)’ penalty on June 5, 2008. This penalty resulted in the cancellation of his promotion. The officer’s Annual Confidential Report (ACR) for 2007-2008 was also initiated on October 16, 2008, which he challenged through a Statutory Complaint that was rejected on June 16, 2009.

The officer then filed Original Applications (OAs) before the Armed Forces Tribunal (AFT), challenging the penalty and non-empanelment. These OAs were initially dismissed, but the Delhi High Court quashed the COI proceedings and ordered his promotion on July 9, 2012. However, the Supreme Court set aside the High Court’s order on March 10, 2014, and remanded the matter back to the AFT for fresh consideration.

Timeline:

Course of Proceedings

The officer initially challenged the ‘Severe Displeasure (Recordable)’ penalty and the consequent non-empanelment by filing two Original Applications (OAs) before the Armed Forces Tribunal (AFT), Regional Bench at Mumbai. The AFT dismissed these OAs. Dissatisfied, the officer filed writ petitions before the High Court of Delhi, which quashed the COI proceedings and directed the Union of India (UOI) to promote him. However, the Supreme Court set aside this order and directed the AFT to hear the matter afresh.

Additionally, the officer filed another OA before the AFT, Lucknow Bench, challenging his ACR for 2007-08, which was later transferred to the AFT, Mumbai, and renumbered as TA No. 8/2013. The AFT initially held that the ACR had lost its importance but later directed that the officer’s case be reviewed for promotion without considering the 2007-08 ACR. The UOI’s appeal against this order was rejected by the AFT.

After the Supreme Court’s remand, the AFT, Mumbai, dismissed the officer’s OAs challenging the penalty. The officer then filed a review application, which was also dismissed. This led to the current appeals before the Supreme Court by both the UOI and the officer.

Legal Framework

The primary legal provision at the heart of this case is Army Rule 180, which outlines the procedure to be followed when an inquiry affects the character or military reputation of a person subject to the Army Act. This rule mandates that “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 Supreme Court also considered the principle of natural justice, which requires that any person facing adverse action be given a fair hearing, including the right to know the charges against them, the right to present their case, and the right to cross-examine witnesses. The Court also noted that the procedure should be fair and impartial, and the findings should be based on evidence.

Arguments

The officer argued that the Court of Inquiry (COI) violated Army Rule 180 by not providing him a full opportunity to defend himself. He contended that the Inquiry Officer relied on a ‘discreet inquiry’ report by Military Intelligence, which was not disclosed to him, and also took six other prejudicial documents covertly on record. He further argued that the Inquiry Officer assured him that no adverse evidence was in hand, which was false. The officer also submitted that the COI took suo motu cognizance of the withdrawal of the complaint, which was without jurisdiction.

The officer also argued that the COI suppressed evidence that vindicated him. He pointed out that the husband of Mrs. Bhatti, in his deposition, had stated that there was no blackmail or stealing of affections, but the COI had perversely recorded the opposite. He also alleged that the Inquiry Officer had a secret meeting with opposite witnesses and did not give him notice of the charge of ‘trying to circumvent law’.

The Union of India (UOI) argued that the officer’s behavior was reprehensible and that the COI was constituted based on a serious complaint. They contended that the officer had admitted his guilt by tendering an apology, which was a voluntary act. They also argued that the provisions of Army Rule 180 were complied with, and a show cause notice was issued to the officer before awarding the penalty.

Submissions by the Officer:

• ✓ Violation of Army Rule 180: Full opportunity not provided.
• ✓ Reliance on undisclosed ‘discreet inquiry’ report.
• ✓ Covertly taking prejudicial documents on record.
• ✓ Suo motu cognizance of withdrawn complaint.
• ✓ Suppression of favorable evidence.
• ✓ Secret meeting by Inquiry Officer with opposite witnesses.
• ✓ No notice of charge of ‘trying to circumvent law’.
• ✓ Convening Order for Inquiry was issued covertly.
• ✓ Members of Inquiry did not assemble post last day of depositions.
• ✓ Competent authority did not consider the exhaustive reply to Show Cause Notice.
• ✓ ‘Censure’ itself is an illegal and impermissible penalty.
• ✓ Complaint authenticated but the contents thereof were not proved in the inquiry.

Submissions by the Union of India:

• ✓ Serious allegations in the complaint.
• ✓ Officer’s behavior was reprehensible.
• ✓ COI was constituted based on a serious complaint.
• ✓ Officer admitted guilt by tendering an apology.
• ✓ Provisions of Army Rule 180 were complied with.
• ✓ Show cause notice was issued before awarding penalty.

Issues Framed by the Supreme Court

The Supreme Court considered the following key issues:

1. Whether the Court of Inquiry (COI) violated Army Rule 180 by not affording full opportunity to the officer.
2. Whether the COI’s findings were valid, considering the circumstances of the apology letter and the withdrawal of the complaint.
3. Whether the ‘Severe Displeasure (Recordable)’ penalty was justified based on the COI’s findings.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court allowed the officer’s appeals and set aside the judgment of the AFT, as well as the ‘Severe Displeasure (Recordable)’ penalty. The court found that the COI had failed to adhere to the procedure laid down in Army Rule 180, violated the principles of natural justice, and based its findings on material that could not be relied upon without formal proof.

The Court held that the apology letter was conditional and could not be treated as an admission of guilt. The Court also noted that the COI failed to consider that the complainant and Col. Bhatti did not support the allegations. The Court also noted the COI’s reliance on the ‘discreet inquiry’ without giving the officer a chance to respond.

The court directed that the officer be promoted to the rank of Brigadier from the date he was entitled to it, with all consequential benefits, including arrears of salary and pension. The UOI’s appeal was dismissed.

How each authority was viewed by the Court:

• Army Rule 180: The Court emphasized the mandatory nature of this rule, stating that it was blatantly violated in the inquiry.
• Lt. Col. R.D. Sharma v. UOI: The Court acknowledged this case as precedent for the mandatory nature of Army Rule 180.
• Roop Singh Negi v. Punjab National Bank & Ors. [2009] 2 SCC 570: The Court relied on this case to emphasize that the complaint must be proved in the inquiry.
• Managing Director, E.C.I.L., Hyderabad v. B. Karunakar (II) [1994] Supp (2) SCC 391: The Court cited this case to support the principle that a violation of natural justice vitiates an inquiry.

“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.”

“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.”

“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.”

What weighed in the mind of the Court?

The Supreme Court’s decision was heavily influenced by the procedural lapses and violations of natural justice in the Court of Inquiry (COI). The Court emphasized that the COI did not adhere to Army Rule 180, which mandates a full opportunity for the accused to defend themselves. The Court also found that the COI relied on a ‘discreet inquiry’ report and other covert documents without giving the officer a chance to respond. The Court was also critical of the COI’s reliance on a conditional apology letter as an admission of guilt and the fact that the complainant and Col. Bhatti did not support the allegations.

The Court’s reasoning was also influenced by the principle of natural justice, which requires a fair hearing and an unbiased process. The Court found that the COI process was biased and did not provide the officer with a fair opportunity to present his case. The Court also noted that the COI had suppressed evidence that vindicated the officer.

Fact:Law Ratio:

Logical Reasoning:

Key Takeaways

• ✓ Military inquiries must strictly adhere to Army Rule 180 and principles of natural justice.
• ✓ Conditional apologies cannot be treated as unconditional admissions of guilt.
• ✓ Findings of guilt must be based on solid evidence and not on assumptions.
• ✓ The importance of providing a fair hearing and opportunity to defend oneself in military inquiries.
• ✓ The necessity for military authorities to ensure that procedures are fair and impartial.

This judgment reinforces the need for procedural fairness and adherence to legal principles in military disciplinary proceedings. It emphasizes that even in matters of military discipline, the principles of natural justice cannot be overlooked. This ruling is likely to have a significant impact on future cases involving military inquiries and the imposition of penalties.

Directions

The Supreme Court directed the following:

• ✓ The ‘Severe Displeasure (Recordable)’ penalty imposed on the officer is set aside.
• ✓ The officer is to be promoted to the rank of Brigadier from the date he was entitled to it.
• ✓ The officer is entitled to all consequential benefits, including arrears of salary and pension.
• ✓ Arrears of salary and pension are to be worked out and given to the officer within three months.
• ✓ The officer will be treated as retired as Brigadier and shall be entitled to terminal benefits as Brigadier.

Specific Amendments Analysis

There is no specific amendment analysis in this judgment.

Development of Law

The ratio decidendi of this case is that military inquiries must strictly adhere to the procedures laid down in Army Rule 180 and the principles of natural justice. The Court clarified that a conditional apology cannot be treated as an unconditional admission of guilt and emphasized that findings of guilt must be based on solid evidence. This judgment reinforces the importance of procedural fairness in military disciplinary proceedings and is a significant reminder that military authorities must ensure that procedures are fair and impartial. The judgment also clarifies that the burden of proof is on the authority making the allegations and not on the person being accused.

Conclusion

The Supreme Court’s judgment in Union of India vs. Col. A.D. Nargolkar is a significant ruling that underscores the importance of procedural fairness and adherence to legal principles in military disciplinary proceedings. The Court quashed the ‘Severe Displeasure (Recordable)’ penalty imposed on the officer, emphasizing that the Court of Inquiry (COI) had violated Army Rule 180 and the principles of natural justice. The Court’s decision ensures that military officers are not penalized based on flawed procedures and questionable evidence. The judgment also serves as a reminder that even in matters of military discipline, the principles of natural justice cannot be overlooked.