( 1 ) SPECIAL Civil Application No. 4013 of 1983 having been rejected by the learned single Judge of this Court the appellant (original petitioner) has preferred this Letters Patent Appeal. The learned Judge dismissed the special civil application mainly relying on the provisions of clause (4) of Art. 227 of the Constitution of India as the order of the General Court Martial which is a Tribunal is challenged. In the view of the learned Judge special civil application could not be filed under Art. 226 of the Constitution and the and provisions cannot be attracted as the Court-martial is a Tribunal or a Court. The learned Judge also observed that what is challenged is the procedure adopted by the General Court-martial and by referring to the provisions of Art. 226 of the Constitutions provisions of clause (4) of Art. 227 of the Constitution cannot be avoided.

( 2 ) WITH view to appreciate the rival contentions facts leading to he prosecution and conviction of the appellant under sec. 41 of the Army Act 1950 by the General Court Martial be narrated.

( 3 ) THE appellant was a Major in 3 - Engineer Regiment under 11 Infantry Division since June 1979 at Ahmedabad and was the Company Commander of 58 filed Company from January 1980 upto August 1982 Lt. Col. P. R. Rao was the Commander of the Unit and Major P. S. Bajaj was also attached to the same Unit and was the Company Commander of another Field Company. On 14-7-1982 Lt. Col P. R. Rao had to go to Jaipur for attending the meeting of Formation Commanders. Major P. S. Bajaj being the senior-most Officer and second in Command was to be in charge of Lt. Col. P. R. Rao on 15-7-1982 Major P. S. Bajaj issued orders for weapon-cleaning parade at night on 15-7-1982 in view of the impending arms inspection on 16-7-1982 by the Corps of Electrical and Mechanical Engineers which is an independent authority under the Army. That inspection was already scheduled and therefore the weapon-clear ing parade was necessary Appellant P C. Suri did not obey the orders and himself and all the members of his Company did not remain present for Arms Cleaning parade Training at night on 15-7-1982 even though other officers with their companies attended the Weapon Cleaning Parade. As the appellant disobeyed the lawful command of the Superior Officer report was made to the higher authorities and ultimately the Commanding Officer convened the General Court Martial to adjudicate the charge against the appellant.

( 4 ) THE charge against the appellant was for disobeying the lawful command given by his Superior Officer and in that he at Ahmedabad on 15-7-1982 while being Company Commander of 58 Field Company 3 Engineer Regiment when ordered by IC-22815 F Major P. S. Bajaj the Officiating Officer Commanding of the Unit to carry out Regiment Night Training for Weapon Cleaning with his Company did not do so.

( 5 ) AFTER examining the several witnesses produced by the prosecution and the defence and giving opportunity to the parties of being heard the General Court Martial convicted the appellant and awarded the punishment of two years loss of seniority for the purpose of promotion as provided in sec. 71 Army Act subject to the confirmation as provided in secs. 153 and 154 Army Act.

( 6 ) BEING aggrieved by the said order of the General Court Martial the appellant submitted pre-confirmation petition under sec. 164 Army Act on 19-5-1983 but that was rejected by the G. O. C. in Southern Command on 6-5-1983 and the appellant was accordingly informed on 15 It appears that before the confirmation order was passed the appellant filed Special Civil Application No. 4013 of 1983 in this Court and interim relief was granted by the Court.

( 7 ) THE learned single Judge issued notice pending admission returnable on 5-9-1983 and also granted interim relief in terms of para 7 (B) of the petition. After the Notice was served the learned Standing Counsel for the respondents appeared and raised a preliminary objection a