1. Military officer — Disciplinary proceedings under Army Act — General Court Martial conviction and dismissal — Challenge to GCM composition and sentence proportionality. (Para 3 , 4 )
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2019 Supreme(SC) 632
SUPREME COURT OF INDIA
A.K. Sikri, S. Abdul Nazeer, M.R. Shah, JJ.
Ex. Lt. Gen. Avadhesh Prakash - Appellant
Versus
Union Of India - Respondent
Criminal Appeal No. 140 of 2019 (Diary No. 12371 of 2018)
Decided On : 24-01-2019
Important Points
IMPORTANT POINT
The constitution of CGM is not valid, its proceedings stand vitiated.
The constitution of CGM is not valid, its proceedings stand vitiated.
Subject
Military Law - Court Martial
Act Referred
Headnote
(a) Army Rules - Rule 40(2) - CGM to be comprised by officers of same rank or above - Instantly appellant a Lt. General - CGM comprised by one Lt. General and two Major Generals - Appellant being retired Lt General does not make any difference - Held, GCM was not validly constituted - Hence entire proceedings held by the said GCM stand vitiated. (Para 6)
(b) Administration of justice - Natural justice - Only one charge established proved for which appellant was dismissed whereas similarly situated officers were given punishment of "severe reprimand" - Appellant’s dismissal not sustainable. (Para 7)
Facts of the case:
A show cause notice was issued against the appellant in regard to the so-called 'Sukna Land Scam' case. Then provisions of Rule 180 of the Army Rules, 1954 were invoked against him.
However, just two days prior to his retirement on 31.01.2010, the appellant was informed about withdrawal of the above show cause notice and initiation of disciplinary proceedings against him under the provisions of section 123 of the Army Act, 1950. The appellant filed an O.A. before the Armed Forces Tribunal challenging 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 Tribunal gave partial relief to the appellant. Against the said Order of the Tribunal, the appellant’s Special Leave Petition was dismissed.
The General Court Martial ("GCM") sentenced him to "Dismissal from Service." The Tribunal, held appellant guilty of 'Unbecoming conduct' under section 45 of the Army Act with the direction that the appellant need not be given the arrears of pension from the date of his dismissal till the date of passing the order and the same shall be given to him w.e.f. 20.12.2017, i.e., the date of pronouncement of the Order.
Finding of the Court:
The CGM was not properly constituted.
Result: Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
Sudhanshu S. Pandey, Shri. Gaichangpou Gangmei, Abhishek K. Shukla, K.M. Nataraj, ASG, Mrs. V. Mohana, Sr. Adv., Shekhar Vyas, S.S. Ray, Rohit Rao, S.S. Rizvi, Kiran Kumar K., Arvind Kumar Sharma, Advs.
.
Sudhanshu S. Pandey, Shri. Gaichangpou Gangmei, Abhishek K. Shukla, K.M. Nataraj, ASG, Mrs. V. Mohana, Sr. Adv., Shekhar Vyas, S.S. Ray, Rohit Rao, S.S. Rizvi, Kiran Kumar K., Arvind Kumar Sharma, Advs.
.
Table of Contents
2. Validity of GCM composition under Rule 40 of Army Rules — Proportionality of dismissal sentence compared to other officials. (Para 5 , 7 )
3. GCM composition must comply with statutory rules regardless of subsequent retirement; trial by members of lower rank is a travesty of justice. (Para 6 )
4. A General Court Martial is invalidly constituted if its members are of a lower rank than that held by the accused during the alleged misconduct. (Para 6 )
5. Appeal allowed — GCM proceedings vitiated — Punishment of dismissal set aside — All admissible pensionary benefits granted. (Para 8 )
6. Does the retirement of a military officer affect the rank requirements for the composition of a General Court Martial?
No. The rank requirements under Rule 40(2) of the Army Rules must be complied with based on the rank held by the officer at the time of the allegations, regardless of whether the officer has since retired. (Para 6 )
7. What is the legal consequence of a General Court Martial being invalidly constituted?
If the GCM is not validly constituted according to statutory rules, the entire proceedings held by that GCM stand vitiated. (Para 6 )
8. When may a court decline to remit a case for a fresh trial after setting aside a military court's proceedings?
A court may decline remand if the charges are not serious, the punishment was disproportionate, the accused has already retired, and no useful purpose would be served by a fresh trial. (Para 7 )
JUDGMENT :
Criminal Appeal No. 140/2019 arising out of D. No. 12371/2018:
Leave to appeal is granted.
2. We have heard learned counsel for the parties at length.
3. The relevant facts, in a nutshell, are as follows :-
The appellant was commissioned in the Indian Army on 20.12.1970 and promoted to the rank of Lieutenant General in October, 2007. He was appointed as a Military Secretary on 01.05.2008 at the Army Headquarters, New Delhi. During the tenure of the appellant as the Military Secretary the so-called 'Sukna Land Scam' case broke out in the end of the year 2010. The appellant's name figured in the Court of Inquiry on 07.01.2009. Then provisions of Rule 180 of the Army Rules, 1954 were invoked against him. The Chief of Army Staff initially directed Administrative Action against the appellant and a show cause notice dated 11.01.2010 was served upon him. The appellant submitted his reply to the show cause notice on 22.01.2010. However, just two days prior to his retirement on 31.01.2010, the appellant was informed about withdrawal of the above show cause notice and initiation of disciplinary proceedings against him under the provisions of section 123 of the Army Act, 1950. The appellant filed an O.A. before the Armed Forces Tribunal ("the Tribunal") challenging 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 Tribunal gave partial relief to the appellant. Against the said Order of the Tribunal, the appellant approached this Court by preferring Special Leave Petition. This Court dismissed the Special Leave Petition.
4. The General Court Martial ("GCM") found the appellant not guilty on the first charge. However, the GCM found the appellant guilty on charges second, third and fourth and sentenced him to "Dismissal from Service." The appellant preferred O.A. before the Tribunal against the rejection of Post-Confirmation Petition, setting aside GCM proceedings and payment of all retiral and consequential benefits. The Tribunal, after considering the rival contentions made by the parties, came to the conclusion that the appellant is guilty of the second charge, i.e., 'Unbecoming conduct' under section 45 of the Army Act and he is not proved to be guilty for charges three and four with the direction that the appellant need not be given the arrears of pension from the date of his dismissal till the date of passing the order and the same shall be given to him w.e.f. 20.12.2017, i.e., the date of pronouncement of the Order. Aggrieved by the Order passed by the Tribunal, the appellant is before this Court.
5. The first and foremost challenge laid by the appellant was to the validity of the composition/constitution of the GCM. It is an admitted case that the appellant was holding the position of Lieutenant General in the Army. As per the provisions of Rule 40 of the Army Rules, 1954, in his case, members of the GCM could be of the rank of Lieutenant General or above. It is an admitted position that one Lieutenant General and four Major Generals constituted the GCM. The Tribunal, in the impugned Order, had accepted the aforesaid position/composition and even agreed with the counsel for the appellant that the respondents could have tried to make Lieutenant Generals available from over eighty such Lieutenant Generals in the Indian Army as members of the GCM. It is also recorded that Lieutenant Generals were in fact made available for the GCM of Lt. Gen P. K. Rath which was held a few month earlier. Notwithstanding the same, only on the ground that the appellant had already retired as Lieutenant General, the Tribunal has come to the conclusion that it does not find any legal infirmity in the constitution of GCM as the provisions of Rule 40(2) of the Army Rules have been complied with.
6. We fail to understand the aforesaid reasoning and rationale given by the Tribunal. The appellant was holding the position of Lieutenant General. Allegations w
