20 August 2017

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.***** 

Major General Mrinal Suman at 8:44 AM

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