IMPORTANT POINT
Court Martial – Non-recording of reasons of appointment of an officer junior in rank as a Judge Advocate in convening order invalidates Court Martial proceedings.

JUDGMENT :

PRASHANT KUMAR MISHRA, J.

This appeal is directed against the order dated 21.05.2014 passed by the High Court of Punjab & Haryana in CWP No. 20380 of 2012. Under the said order, the High Court has set-aside the order passed by the Armed Forces Tribunal, Chandigarh¹[‘AFT’], which has dismissed the appeal of the respondent and upheld the findings and sentence awarded by the General Court Martial²[‘GCM’].

2. The respondent was first commissioned in the Army Medical Corps³[‘AMC’] as medical officer from 29.05.1978 to 31.07.1983. He was again commissioned as regular officer in AMC on 25.02.1987. In 1996, he was designated as Graded ENT Specialist and was then upgraded as classified Specialist ENT in the year 2001. In the month of February, 2002, the respondent was posted with Military Hospital, Secunderabad wherein he was required to examine new recruits being forwarded by various training centres.

3. In September, 2002 one Recruit/Soldier/GD K. Siddaiah alleged that the respondent paid money for reviewing its remarks “unfit” to “review after 15 days”. The statement of the recruit was recorded by one Major Mrs. R.M.B. Mythilly who initiated AFMSF-7. The respondent was charge-sheeted, and three charges were framed against him, namely:

(i) The respondent, an ENT Specialist at a Military Hospital, had, for extraneous consideration declared an Army recruit, K. Siddaiah, as ‘fit’ after previously-declaring him ‘unfit’. Consequently, the first charge against him was under Section 57(c) of the Army Act for knowingly and with intent to defraud altering a document/remarks in the AFMSF-7.

(ii) The second charge was under Section 39(a)of the Army Act for absenting himself without leave from 11.04.2004 to 19.04.2004.

(iii) The third charge was under Section 45 of the Army Act for conduct unbecoming of an officer and the character expected of his position.

4. Upon conclusion of trial by GCM and upon finding two out of three charges proven, the respondent was dismissed from service against which he preferred proceedings before AFT, which upheld the findings of guilt and the sentence of dismissal from service as awarded by the GCM. It is this order of the AFT which was assailed by the respondent before the High Court. The High Court allowed the writ petition preferred by the respondent solely on the ground that an officer junior to the respondent has acted as Judge Advocate in the GCM contrary to the law laid down by this Court in Union of India & Anr. vs. Charanjit Singh Gill, 2000 (5) SCC 742.

5. Assailing the impugned order of the High Court, Shri R. Bala, learned Senior Advocate for the appellant/Union of India has argued that there is no blanket prohibition on appointing an officer of lower rank than the charged officer to serve as Judge Advocate in a Court Martial. He would strenuously urge that in Charanjit Singh Gill (supra), this court has carved out an exception to the effect that “a Judge Advocate appointed with the Court Martial should not be an officer of a rank lower than that of the officer facing the trial unless the officer of such rank is not (having due regard to the exigencies of public service) available and the opinion regarding non-availability is specifically recorded in the convening order”. According to learned senior counsel, the present case falls within the above exception inasmuch as non-availability of an officer of equivalent or higher rank was specifically recorded in the convening order. It is also argued, referring to Army Rule 103 that a Court Martial shall not be invalid merely by reason of any invalidity in the appointment of the Judge Advocate officiating thereat. Reference is made to Union of India vs. S.P.S. Rajkumar and Ors., 2007 (6) SCC 407.

6. Per contra, Shri G.S. Ghuman, learned counsel appearing for the respondent would submit that one Major Rajiv Dutta was appointed as a Judge Advocate in the Court Martial, who was junior in rank to the respondent. This was informed to the respondent by forward