February 05, 2019:
The bench comprising of Justices AK Sikri, S. Abdul Nazeer and MR Shah, of Hon'ble Supreme Court, enunciates 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.
Supreme Court in Ex. Lt. Gen. Avadhesh Prakash vs Union of India & Anr., via its order dated 24th January, 2019 decided an appeal filed by Ex. Lt. Gen. Avadhesh Prakash who was dismissed from service by the General Court Martial for his alleged involvement in 'Sukna Land Scam',
"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."
Just two days prior to Appellant's retirement on 31.01.2010, he was informed about initiation of disciplinary proceedings against him under the provisions of Section 123 of the Army Act, 1950. The appellant challenged the Court of Inquiry for non-compliance of Rule 180 of the Army Rules, Para 518 of the Defence Service Regulations ("DSR") and change of directions.
The Armed Forces Tribunal while giving partial relief, 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, it observed, "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."
The Bench while setting aside the punishment of dismissal imposed by the Tribunal, holds that the retired officer would be entitled to all the benefits; pensionary or otherwise. It also states that the entire proceedings held by the said GCM stands vitiated.
Read Order @ LatestLaws.com
Ex. Lt. Gen. Avadhesh Prakash versus Union of India & Anr. 24.01.2019(Downloadable PDF)
Picture Source :
