Author-Somya Tiwari, [ILS Law College, Pune]
The Supreme Court, while considering an appeal, observed that an army officer holding the rank of Lieutenant General cannot be tried by the General Court Martial (GCM) consisting of members below his rank.
The Apex Court while dealing with an appeal filed by retired Ex. Lt. Gen. Avadhesh Prakash regarding the dismissal of his services for his alleged involvement in ‘Sukna Land Scam’, held that an army officer who either presently holds a rank of Lieutenant General or is retired from the same post, cannot be tried by the General Court Martial (GCM) consisting of members below his rank.. The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah delivered the judgment. Earlier when the case was under the jurisdiction the armed force tribunal, the appellant was convicted for “Unbecoming Conduct” under section 45 of the Army act. It is important to note that, Earlier the appellant was levied with four charges out of which the tribunal was declared guilty of second, third and fourth charges by the tribunal and therefore dismissed from the services.
Thereafter, the appellant challenged the very formulation of GCM as it comprises of the officers below his rank and it violates Article 40 of Army Act 1954 but his claim was rejected by the tribunal on the ground that he no longer serves the post of Lieutenant General and can be tried by the presently constituted GCM. Aggrieved by the order of the tribunal the appellant approached the Apex Court where the order passed by the tribunal questioned. It said:
We fail to understand the aforesaid reasoning and rationale given by the Tribunal. The appellant was holding the position of Lieutenant General. Allegations which were leveled against him for which GCM was convened was in his capacity as the Lieutenant General. Merely because the appellant had retired in the meantime cannot be a ground to discard and give a go by to the provisions of Rule 40(2) of the Army Rules. Needless to mention that the aforesaid Rules had statutory force. It is a travesty of justice that a person holding the rank of Lieutenant General is tried by the GCM which consisted of members below his rank. Such a composition cannot be countenanced in law. We are, therefore, of the opinion that the GCM was not validly constituted. Once that finding is arrived at, entire proceedings held by the said GCM stand vitiated.
It was specifically contended by the appellant that the quantum of punishment inflicted which denies him the arrears of pension from the date of his dismissal till the date of passing the order by tribunal, is arbitrary and harsh in nature to which the bench said:
It was specifically contended that the punishment of dismissal which had been imposed upon the appellant is very harsh in comparison to the punishment of “severe reprimand given to the other officials involved in the matter. The Tribunal, however, rejected this contention. We do not find any justifiable reason for adopting this course of action when the Tribunal itself held that the punishment of dismissal imposed upon the appellant was because of three charges held against him and also, according to the Tribunal, two charges out of the said three charges also could not be treated as proved.
After hearing the contentions of the appellant, the court considered the appeal and impugned Order of the Tribunal was set aside. Also the punishment of dismissal imposed upon the appellant also stands set aside for the reason that the said GCM had exonerated the appellant of serious charge and It was also held by the tribunal that only three charges stood proved against the appellant Thus, the appellant was be allowed all the benefits; pensionary or otherwise, which are admissible to him in law. The Court also directed that the benefits shall be computed and arrears be paid to the appellant within a span of three months.
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