IMPORTANT POINT
The constitution of CGM is not valid, its proceedings stand vitiated.

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