Lt. Gen (Rtd) Can’t Be Tried In A General Court Martial Consisting Of Members Below His Rank: Apex Court

Lt. Gen (Rtd) Can’t Be Tried In A General Court Martial Consisting Of Members Below His Rank: Apex Court

EX. LT. GEN. AVADHESH PRAKASH V. UNION OF INDIA & ANR.

Apex Court bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, observed that an army officer holding the rank of Lieutenant General cannot be tried by the General Court Martial (GCM) consisting of members below his rank.

The GCM dismissed Ex. Lt. Gen. Avadhesh Prakash from service and Armed Forces Tribunal had also held him guilty of the second charge i.e. ‘Unbecoming conduct’ under Section 45 of the Army Act. Though the challenge against constitution of GCM was made before the Tribunal, it had rejected it on the ground that the officer had already retired as Lieutenant General.

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Court also observed that merely because he had retired in the meantime could not be a ground to discard and give a go by to the provisions of Rule 40(2) of the Army Rules. It said:

“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. 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.”

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The bench then set aside the punishment of dismissal imposed and also held that the retired officer would be entitled to all the benefits; pensionary or otherwise.