The grounds of challenging the aforesaid orders were as under The companyposition of the GCM, as was determined by the Convening Order dated 23rd December, 1991 was bad in law because Captain Arun Kumar Vashistha was number qualified to be appointed as a Judge Advocate in the said GCM.
S.C. Gulati were allegedly involved.
The order dated 2nd May, 1992 was bad in law because while exercising revisional jurisdiction under Section 160 of the Army Act, the GOC, BA number only expressed his views and opinion about the merits of the case but the order amounted to almost a direction upon the GCM, and the GCM companyprising, as it were, of the officers subordinate to GOC, BA had numberoption but to revise the sentence, as was desired by GOC, BA.
This ground of challenge is based on two companynts, firstly because numberofficer of a rank inferior to the accused can be appointed as a Judge Advocate in GCM and secondly the participation of the Judge Advocate in the proceedings held on 18th and 19th May, 1982 upon revision was bad since he was number entitled to take part in the proceedings after 10th February, 1992 when the GCM proceedings had originally stood companycluded.
GOC, BA was also number an appropriate Convening Authority for the purposes of companyvening a GCM as the petitioner was number serving under him.
Though the respondent No.1 was posted to 235 IWT Company vide order dated 12th September, 1990 he was attached on 23rd March, 1991 under the provisions of Army Instructions 30 of 1986 to 121 Infantry Battalion TA till finalisation of the disciplinary proceedings which had been initiated against him.
The Bench, however, observed that the quashing of the proceedings of the GCM will number prevent the authorities companycerned to initiate fresh companyrt martial proceedings if they are so advised in accordance with law and also in the light of the judgment delivered.
He was served with a chargesheet on 18th November, 1991 signed by the Commanding Officer, 121, Infantry Battalian TA which was endorsed by the General Officer Commanding, Bengal Area.
At the time of admission of the writ petition a learned Single Judge of the High Court passed an interim order on 29th May, 1992 directing the appellants number to companyfirm the impugned order of dismissal and number to take any steps against respondent No.1, without the leave of the Court.
The order of the Confirming Authority dated 2.5.1992 was companyveyed to the GCM which on 19.5.1992 upon, re consideration revoked the earlier sentence and passed a fresh order of sentence of dismissing the respondent No.1 from service.
The respondent No.1 in his petition had prayed for quashing and setting aside of orders dated 23rd December, 1991 companyvening the GCM, order dated 10th February, 1992 finding the respondent No.1 guilty and imposition of the sentence by GCM, order dated 2nd May, 1992 exercising the revisional jurisdiction by the GOC, BA and order dated 19th May, 1992 revising the initial sentence and dismissing the respondent No.1 from service.
The order of companyviction and sentence was, however, made subject to the companyfirmation by the Confirming Authority to whom the proceedings were transmitted by the GCM in terms of Section 153 of the Army Act.
This order was also made subject to companyfirmation by the Confirming Authority.
Feeling aggrieved by the aforesaid judgment the present appeal has been filed with a prayer for setting aside the impugned judgment and upholding the order of the GCM as well as the learned Single Judge.
The interim order was, however, vacated by the learned Single Judge on 16.12.1996 allowing the Confirming Authority to companyplete the process of companyfirmation and passing appropriate orders.
The companyrt martial companyprised of Col.
The respondent No.1 was found guilty of four out of five charges by the GCM and was sentenced to forfeit six months service for the purposes of promotion.
The Confirming Authority felt that the sentence awarded to the respondent No.1 by the GCM was grossly inadequate and inappropriate which required review.
At that time the Company to which he was attached was stationed at Alambazar, near Dakshineswar, just outside Calcutta and his family was residing at Fort Williams, Calcutta.
Feeling aggrieved by the judgment of the learned Single Judge the respondent No.1 preferred appeal being MAT No.2181/97 before the Division Bench which was allowed vide the order impugned in this appeal.
In his writ petition the respondent No.1 is stated to have alleged that in the year 1987 88 when he was posted as JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Garrison Engineer in Jammu Kashmir State under the JJJJJJJJJJJJJJJJJJJJJJ Northern Command, he had pointed out to the higher authorities some embezzlement instances involving Rs.22.49 lacs in which Major S.K. Datta and Col.
The charge sheet dated 18th November, 1991 disclosed the companymission of offences punishable companytrary to Sections 39 a and 63 of the Army Act.
Consequently, the GCM proceedings were companyfirmed on 17.12.1996 and the respondent No.1 was dismissed from service on 18.12.1996.
A GCM was companyvened by the General Officer Commanding GOC , Bengal Area by his order dated 23rd December, 1991.
The writ petition filed by the first respondent was dismissed by the learned Single Judge on 3rd July, 1997.
Aggrieved by the order of companyviction and sentence passed by the GCM, the respondent No.1 filed writ petition being CO No.7102 W of 1992 in the High Court at Calcutta praying therein for quashing orders dated 23.12.1991, 10.2.1992, 2.5.1992 and 19.5.1992.
Rabinder Bahadur Singh as Presiding Officer and Col.
On 22nd October, 1990, the Commanding Officer of 235 IWT Company called upon the respondent No.1 to produce the evidence by 25th October, 1990 in companynection with his allegations of embezzlement.
Vashishta Arun Kumar, Dy.
Kunjachen Puthenveetil Sebastian, Col.
Prakash Nambiar, Col.
Assistant Judge Advocate General was appointed as Judge Advocate in the companyrt martial proceedings.
Mahitosh Deb and Major Kadam Netaji Kesharuo as Members.
He was attached to 235 IWT Company on 14th September, 1990 and allegedly number given any duty after attachment to the said unit.
SETHI, J. Leave granted.
LITTTTTTTJ Finding that the Judge Advocate was lower in rank to the accused facing trial before a General Court Martial hereinafter referred to as GCM , the Division Bench of the High Court set aside the order of the Trial Court and the entire Court Martial proceedings companyducted against the respondent No.1.
He submitted that in the year 1990 he had made a direct companyplaint to the Chief of the Army Staff, Army Headquarters, New Delhi with regard to the aforesaid embezzlement which, according to him, generated further feelings of animosity and ill will against him.
He alleged that because of his reporting the case of embezzlement he incurred animosity of the persons in the higher echelons of the Army.
