Lieutenant General (Rtd) Cannot Be Tried In A General Court Martial Consisting Of Members Below His Rank: SC

The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, was considering an appeal filed by Ex. Lt. Gen. Avadhesh Prakash who was dismissed from service by the GCM for his alleged involvement in 'Sukna Land Scam'.

The Armed Forces Tribunal had also held him guilty of the second charge i.e. 'Unbecoming conduct' under Section 45 of the Army Act. Though the challenge against constitution of GCM was made before the Tribunal, it had rejected it on the ground that the officer had already retired as Lieutenant General.

When this contention was reiterated before the apex court bench, it observed that merely because he had retired in the meantime could not be a ground to discard and give a go by to the provisions of Rule 40(2) of the Army Rules. 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 levelled 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."

Holding that the entire proceedings held by the said GCM stood vitiated, the bench proceeded to examine the charges. 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."

The bench then set aside the punishment of dismissal imposed and also held that the retired officer would be entitled to all the benefits; pensionary or otherwise.

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