In a major relief to former military secretary Avadhesh Prakash, the Supreme Court has set aside the General Court Martial (GCM) order dismissing him from service for alleged involvement in the 2008 Sukna land scam in West Bengal, terming its proceedings as "vitiated".
The top court held that the GCM was not "validly constituted" in Prakash's case as it consisted of members below his rank of Lieutenant General, and refused to remit back the case to the authorities for fresh GCM which is done in "normal course".
A bench of justices A K Sikri, S Abdul Nazeer and M R Shah also set aside the December 2017 order of Armed Forces Tribunal (AFT) holding him guilty of charge of "unbecoming conduct" with a punishment that he need not be given arrears of pension from the date of dismissal of service till the date of passing of order.
The court noted that Prakash has already retired from service and only one charge was established against him which was also not of very serious nature, as it quashed the GCM and AFT orders and directed payment of all benefits including pensions within three months to him.
"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," the bench said Monday,
"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," it said.
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The inquiry against Prakash was ordered by the then Chief of Army Staff, General (retd) VK Singh, who is now a Union Minister. After GCM had pronounced him guilty in the case, Prakash had approached the AFT against the order.
The Sukna land scam had first surfaced in 2008 and involves the transfer of land next to the Army's 33 Corps Headquarters in Siliguri, West Bengal, to a real-estate developer.
The apex court said said that in accordance with the provisions of Rule 40 of the Army Rules, 1954, in Prakash's case members of the GCM could be of the rank of Lieutenant General or above.
The top court noted that in this case, the GCM comprised of one Lieutenant General and four Major Generals.
The AFT, in its order, had accepted that Lieutenant Generals could have been made available as members of the GCM, as was done in the case of GCM of Lt Gen PK Rath, another accused in Sukna case.
The top court, in its verdict, said just on the ground that Prakash had already retired as Lieutenant General, the AFT 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.
"We fail to understand the 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," the bench said adding, merely because Prakash had retired in the meantime cannot be a ground to discard and give Army Rules a go by.
The bench said that in normal course in such a case, the court would had remitted the case back for constituting a proper GCM but due to various reasons it was not necessary to do this exercise in the instant case.
Giving the reasons, the bench said that the GCM had itself exonerated Prakash of serious charge and had held him guilty on three charges.
"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," it said and added that charge is also not of a very serious nature.
The court said that Prakash has already retired from service and the only issue now pertains to the grant of pensionary benefit, which the AFT granted from December 20, 2017.
"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," it said.
Prakash was commissioned in the Indian Army on December 20, 1970 and promoted to the rank of Lieutenant General in October, 2007. He was appointed as a Military Secretary on May 1, 2008 at the Army Headquarters, New Delhi.
Prakash's name figured in the Court of Inquiry on January 7, 2009 and the Chief of Army Staff initially directed administrative action against him and a show cause notice was served upon him January 11, 2010.
Prakash submitted his reply to the show cause notice on January 22, 2010 but just two days prior to his retirement on January 31, 2010, he was informed about withdrawal of the show cause notice and initiation of disciplinary proceedings against him under the provisions of Section 123 of the Army Act,1950.
The GCM in 2011 found Prakash not guilty on the first charge but found him guilty on charges second, third and fourth and sentenced him to "Dismissal from Service".
He appealed against the order of GCM in AFT, New Delhi and sought setting aside of the general court martial proceedings against him and payment of all retiral and consequential benefits.
The AFT after considering the rival contentions came to the conclusion that Prakash is guilty of the second charge, i.e., 'Unbecoming conduct' under Section 45 of the Army Act but absolved him for charges three and four.
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