The composition of a military court must comply with statutory rank requirements; failure invalidates proceedings.

1. Criminal Appeal No. 140 of 2019 arising out of D. No. 12371 of 2018
Leave to appeal is granted. We have heard the learned counsel for the parties at length.

2. The relevant facts, in a nutshell, are as follows.

3. 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 1-5-2008 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 7-1-2009. Then provisions of R.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 11-1-2010 was served upon him.

4. The appellant submitted his reply to the show - cause notice on 22-1-2010. However, just two days prior to his retirement on 31-1-2010, the appellant was informed about withdrawal of the above show - cause notice and initiation of disciplinary proceedings against him under the provisions of S.123 of the Army Act , 1950. The appellant filed an OA before the Armed Forces Tribunal ("the Tribunal") challenging the court of inquiry for non - compliance of R.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 ( Avadhesh Prakash v. Union of India , 2010 SCC OnLine AFT 1131) of the Tribunal, the appellant approached this Court by preferring special leave petition. This Court dismissed ( Avadhesh Prakash v. Union of India , 2010 SCC OnLine SC 1467) the special leave petition.

5. 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 OA 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 ( Avadhesh Prakash v. Union of India , 2017 SCC OnLine AFT 4680) that the appellant is guilty of the second charge i.e. "Unbecoming conduct" under S.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 ( Avadhesh Prakash v. Union of India , 2017 SCC OnLine AFT 4680) passed by the Tribunal, the appellant is before this Court.

6. 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 R.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 ( Avadhesh Prakash v. Union of India , 2017 SCC OnLine AFT 4680), 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