Adarsh Committee Report: Oddities Galore
Major
General Mrinal Suman
Adarsh Society has come back to haunt the services, causing severe
damage to the standing and reputation of the higher leadership. Reaction of the
environment varies from incredulous scepticism to outright condemnation of the concerned
officers.
The inquiry committee, set up by the Ministry of Defence
(MoD), in its voluminous report of 199 pages,
has blamed two former Army Chiefs, three Lt Generals, four Maj Generals and
several other military and Defence Estates Office officers for various acts of
omission and commission. The report also calls former Naval Chief Admiral Madhvendra Singh
and Vice Admiral Madanjit Singh as beneficiaries but does not hold them
accountable, as all land-matters in Mumbai are dealt-with by the army.
The enquiry committee
has also recommended appropriate administrative action against the named
officers to include conveyance of displeasure and debarring them from any
future employment or contract with the government, or any of its bodies and
committees.
As regards the genesis of the inquiry committee – it was set up
by MoD pursuant to the orders of the Mumbai High Court. Vide Para 118 of the
order dated 29 April 2016, the Court observed,
“As noted earlier, building (Adarsh) is on the neck joining Colaba island. The
petitioner has contended that GOCs between 1999 and 13 July 2010 and their
family members were allotted flats in Adarsh building. We do not intend to
comment on the role of these officers as they are not made party to the
petition. It is, however, necessary to find out as to why the petition was not
instituted at the earliest available opportunity. MoD is, therefore directed to
hold an in-depth inquiry for finding out whether these GOCs compromised with the
security of Colaba Military Station in lieu of allotment of flats in the building.”
Stressing the seriousness of the above issue, the Court
reiterated its direction in Para 121 and named the said GOCs. It directed MoD
‘to hold an in-depth inquiry for finding out the lapses or reasons on the part
of its officers for not instituting writ petition at the earliest available
opportunity, as also for finding out whether the GOCs between 1999 and 13 July
2010, namely, (1) Maj. General A.R.Kumar, (2) Maj. General V.S. Yadav, (3) Maj.
General T.K. Kaul, (4) Maj. General Tejinder Singh, (5) Maj. General R.K.Hooda compromised with security of Colaba Military
Station in lieu of allotment of flats in
the building’.
MoD constituted a two-member inquiry committee consisting of retired
bureaucrat and a retired Lt
General. Neither the constitution of the committee nor its proceedings were
made public. Therefore, the committee report took the environment by surprise. It
has since been put up on the MoD website.
The aim of this piece is not to defend the guilty.
Transgressions, if any, must be dealt with severely and guilty be awarded
deterrent punishment. However, it is the procedure that MoD followed that
raises several key questions.
First, although the Hon'ble Court had directed MoD to hold an
in-depth inquiry for finding out the lapses or reasons on the part of its
officers, the stress was undoubtedly on the
role and conduct of five GOCs between 1999 and 13 July 2010. It is not known as
to why the scope was enlarged to implicate former Army Chiefs, Lt Generals and
other officers.
Initially, vide its order of 01 Aug 2016, MoD tasked the
committee to bring out the truth as regards (a) ownership of land, (b) possession
of land over passage of time, (c) origin of the society, (d) allotment of land
to the society, (e) phases of construction, (f) interested parties and
beneficiaries, (g) legal lacunae, etc.
For unspecified reasons, on 17 Nov 2016, MoD amended its orders.
Two important terms of reference (ownership of land and possession of land over
passage of time) were deleted. It implied that the whole span of inquiry was
limited to the security aspects of Colaba
Military Station and not ownership/possession of the said land. As security of the
military stations is exclusively the concern of the service officers, civilian
officers of MoD had peripheral role to play. Therefore, it would have been far
more prudent to ask Army Headquarters to order a Court of Inquiry (CoI) under
the Army Rules. A CoI has far more legal sanctity than an inquiry committee of
MoD.
Most unfairly, the
inquiry committee gave no opportunity to the accused officers to defend themselves.
In a way, it was a case of ex-parte findings and verdict; and, in gross
violation of the principle of natural justice.
Natural justice is
based on two fundamental rules: (i) Audi
alteram partem – no accused, or a person directly affected by a decision,
shall be condemned unless given full chance to prepare and submit his or her
case and rebuttal to the opposing party's arguments; (ii) Nemo judex in causa sua – no decision is valid if it was influenced
by any financial consideration or other interest or bias of the decision maker.
These principles apply to decisions of all governmental agencies and tribunals,
and judgments of all courts, which may be declared to be of having no effect (ultra vires) if found in contravention
of natural justice.
Despite common
misperception, Army Rule is far more fair and just in the treatment of the
personnel involved. Army Rule 180 mandates that whenever any inquiry affects
the character or military reputation of a person, 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.
Most interestingly, the
basic question whether Adarsh building poses a threat to the security of the
military installations in Colaba has not been examined by the committee at all.
In all fairness, it should have called the accused officers to ascertain as to why
did they not consider Adarsh to be a security threat. That would have been the
correct approach to follow.
Without prejudice to the
findings of the said committee, legitimacy and authenticity of the procedure
followed remains questionable. Many are questioning the justification for nominating
a bureaucrat as a member of the committee constituted to ascertain the culpability
of senior military officers as regards the security threat to a military
station. Has any military officer ever been made a member of any committee set
up to inquire into the conduct of bureaucrats?
Strangely, the committee
exceeded its brief by recommending administrative action against the allegedly
guilty officers. An inquiry committee is a fact finding body. It can suggest
improvements in the procedures to prevent future transgressions but not suggest
punishments. In this case, the committee has unilaterally declared the accused
officers guilty and even recommended conveyance of displeasure of the
Government to these officers for their conduct and role in facilitating the
wrongdoings. Further, the committee
suggests that the Government can also consider the option of taking action for debarring some or all of
these officers from any future employment or contract with the Central
Government or any of its bodies, or participating in any Committees. The
convening order never asked the committee to suggest punitive actions.
Haste in publishing the report also raises a few questions. One-man
judicial panel on OROP anomalies submitted its report to MoD on 02 Nov 2016.
Over eight months have passed and it has not been made public. In contrast,
Adarsh inquiry committee submitted its report on 28 Feb 2017 and was put on the
website in a span of four months, that too when the report was classified ‘Confidential’.
However, it is not known if the government has accepted the said report.
Finally, a committee report should not become a part of a
slander campaign, duly orchestrated by a few inimical elements. Castigating
Chiefs and other senior brass without giving them a hearing amounts to unilateral
and prejudiced vilification of their character and military reputation. Therefore,
the credibility of the MoD inquiry committee remains suspect. While the guilty
must be punished, the process has to be just, transparent, lawful and
objective.*****
