Lieutenant General (Rtd) Cannot Be Tried In A General Court Martial Consisting Of Members Below His Rank: SC

It has to be said right at the outset that a three-Judge Bench of the Supreme Court comprising of Justice AK Sikri, Justice S Abdul Nazeer and Justice MR Shah in Ex Lt Gen. Avadhesh Prakash v. Union of India & Anr. in Criminal Appeal No. 140 of 2019 (Diary No. 12371/2018) with Civil Appeal No. 9739/2018 decided on January 24, 2019 has set aside the punishment of dismissal imposed on Ex Lt Gen Avadhesh Prakash by a General Court Martial (GCM). This has certainly shaken the defence establishment and all those who court martialled him as the top court has not just validated his stand but also held that the entire proceedings held by the said GCM stood vitiated. It also held that the retired officer would be entitled to all the benefits; pensionary or otherwise.

While craving for the exclusive indulgence of my esteemed readers, it must be informed here that the top court right at the outset notes that the leave to appeal is granted. It then discloses that, 'We have heard learned counsel for the parties at length.' The top court was apprised of their stand by both the parties.

For my esteemed readers exclusive indulgence, it must be now disclosed that the three-Judge Bench then observed that, '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.'

Going forward, the Bench then observes that, '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 saved upon him.'

Continuing in the same vein, the Bench then goes on to add that, '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.'

To be sure, the Bench then discloses that, '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.'

To put things in perspective, the Bench then points out that, '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.'

Needless to say, it is then pointed out that, '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 PK 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.'

While shaking its head in disbelief on the lame stand taken by the Armed Forces Tribunal (AFT), the Bench of Apex Court then minces no words in clearly and categorically holding that, 'We fail to understand the aforesaid reasoning and rationale given by the Tribunal. The appellant was holding the position of Lieutenant General. Allegations which were levelled against him for which GCM was convened was in his capacity as the Lieutenant General. Merely because the appellant had retired in the meantime cannot be a ground to discard and give a go by to the provisions of Rule 40(2) of the Army Rules. Needless to mention that the aforesaid Rules had statutory force.'

While pooh-poohing the shoddy manner in which the AFT conducted the GCM, it is then held by the Bench that, 'It is a travesty of justice that a person holding the rank of Lieutenant General is tried by the GCM which consisted of members below his rank. Such a composition cannot be countenanced in law. We are therefore, of the opinion that the GCM was not validly constituted. Once that finding is arrived at, entire proceedings held by the said GCM stand vitiated.'

As it turned out, the Bench then goes on to add that, 'In normal course in such a case the Court would remit the case back to the respondents to constitute a proper GCM and hold the Court Martial. However, for various reasons it is not necessary to do this exercise in the instant case. First reason is that even the said GCM had exonerated the appellant of serious charge. It had held that only three charges stood proved against the appellant. Interestingly, out of these three charges, the Tribunal, in the impugned order, has come to the conclusion that two charges could not be held to be proved. Therefore, it is only one charge that ultimately stands established against the appellant. That charge is also not of a very serious nature. In fact, before the Tribunal, the counsel for the appellant had also raised the issue of proportionality of sentence.'

Not stopping here, it is then pointed out that, 'It was specifically contended that the punishment of dismissal which had been imposed upon the appellant is very harsh in comparison to the punishment of 'severe reprimand' given to the other officials involved in the matter. The Tribunal, however, rejected this contention. We do not find any justifiable reason for adopting this course of action when the Tribunal itself held that the punishment of dismissal imposed upon the appellant was because of three charges held against him and also, according to the Tribunal, two charges out of the said three charges also could not be treated as proved. Furthermore, the appellant has already retired from service and the only issue now pertains to the grant of pensionary benefit. Even the Tribunal had granted these pensionary benefits from the date of its order, i.e. 20.12.2017.'

Finally and perhaps most importantly, it is then held that, 'For all these reasons, we are of the considered view that no useful purpose would be served in remitting the case back to the authorities for fresh GCM. As a result, this appeal is allowed, the impugned order of the Tribunal is set aside. The punishment of dismissal imposed upon the appellant also stands set aside. The appellant shall be entitled to all the benefits; pensionary or otherwise, which are admissible to him in law. Such benefits shall be computed and arrears be paid to the appellant within a period of three months. Regarding Civil Appeal No. 9739/2018, it is held that, 'Having heard learned counsel for the parties, we find no merit in this appeal and it is, accordingly dismissed.'

All said and done, this latest, landmark and laudable judgment will always serve as the biggest warning to AFT that under no circumstances any rule should be broken while conducting GCM against such a senior officer of the rank of Lieutenant General as we have seen here and if they do then they will be responsible for their stand being rejected by the highest court. This noteworthy ruling has certainly come as a huge relief for Ex Lt General Awadhesh Prakash who was dismissed from service by the GCM for his alleged involvement in ‘Sukna Land Scam' who now stands vindicated. The three Judge Bench of the Apex Court found no credible evidence to upheld the GCM of Ex Lt General Awadhesh Prakash and he therefore now stands acquitted and would be entitled to all the benefits as pointed above!

 

Sanjeev Sirohi 
on 12 February 2019
Published in Others
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