Judgment :

Dr. Mukundakam Sharma, J.

1. This Civil Appeal is directed against the judgment of the High Court of Jammu & Kashmir dated 2.4.2002. By the aforesaid order, the Division Bench of the High Court upheld the order of the learned Single Judge of the High Court of Jammu & Kashmir, dismissing the Writ Petition and upholding the order of conviction of the appellant by the General Court Martial (GCM) for defrauding the Army and sentence of one year of rigorous imprisonment and also of cashiering him from service.

2. The appellant was a Commissioned Officer in the Indian Army working at the relevant time at Leh. He was working as a Garrison Engineer, 865 EWS, where he invited offers from private parties to supply the garrison with Diesel Generator (DG) sets and to make other repairs and replacement.

3. On 29.11.1994 he entered into an agreement with M/s Surjit Singh Sokhi to repair two DG Sets at FRL Powerhouse at Leh for Rs. 2.29 lakh and to repair LT cables at Nimmuy area Leh for Rs. 2.49 lakhs. On 30.11.1994 he entered into an agreement with M/s Mohd Sultan and Bros. to replace LT cables and providing an ACR conductor and to replace parts of two DG Sets for Rs. 2.48 lakhs. Authorities noticed irregularities in these purchases and on 6.12.1994 investigated the contract agreements. A vigilance check was performed by the Commander Works Engineers (CWE) on 9.12.1994. CWE then asked the appellant for his comments on the report which were submitted on 6.2.1995. Discrepancies detected in comparing the report and the comments of the appellant prompted the Technical Board of Officers to issue a report on 9.4.1995, which led a court of enquiry being convened on 20.9.1995 and then to a GCM being convened on 9.3.1998. The appellant was then served a charge sheet on 9.3.1998 that was then withdrawn due to errors and thereafter he was re-served with a fresh charge sheet on 11.3.1998.

4. Seven charges were framed against the appellant two of which could not be proved. All the charges revolved around the allegation of his defrauding the Army for purchasing services to replace and repair items at exorbitant rates which are much higher than what is permissible under the standard scheduled rates.

5. On 14.3.1998 the GCM commenced its proceedings and provided the appellant the right to raise objections of being tried by any officer sitting on the court in accordance with Section 130 of the Army Act, 1950 read with Rule-44 of the Army Rules, 1954. He raised no objection at the time. However, at a subsequent stage of the trial he objected to being tried by the Presiding Officer of the Court. The objection was then considered and rejected. The court convicted the appellant and sentenced him to one year rigorous imprisonment besides cashiering.

6. The appellant then challenged this conviction and sentence based on several issues. The Single Judge of the High Court of Jammu & Kashmir at Srinagar dismissed the Writ Petition holding the same to be without merit. The Division Bench of the High Court in the writ appeal filed before it similarly held that there was no "procedural irregularity or illegality in the GCM proceedings." That appeal was also dismissed.

7. Being aggrieved by both the orders passed by the learned Single Judge and the Division Bench of the High Court, a Special Leave Petition was filed by the appellant. After leave was granted, the appeal was placed for final hearing in which we heard the learned counsel appearing for the parties.

8. The learned counsel appearing for the appellant mainly raised two issues before us during the course of hearing. The first submission of the learned counsel appearing for the appellant was that the convening of the General Court Martial on 14.3.1998 was barred under the provisions of Section 122 of the Army Act. The second submission of the learned counsel for the appellant was that the convening Officer of the General Court Martial in the case of the appellant being the Commanding Officer of the ap