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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 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.

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:

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:

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.