Supreme Court said the general court martial was not "validly constituted"

The Supreme Court has set aside general court martial (GCM) order dismissing former military secretary Avadhesh Prakash 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 Mr 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 AK Sikri, S Abdul Nazeer and MR Shah also set aside the December 2017 order of the 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 Mr Prakash has already retired from service and only one charge was established against him, which was also not of a very serious nature, as it cancelled 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 on 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.

The inquiry against Mr Prakash was ordered by the then Chief of Army Staff, General VK Singh (retired), who is now a Union Minister. After the GCM had pronounced him guilty in the case, Mr 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 top court said that in accordance with the provisions of Rule 40 of the Army Rules, 1954, in Mr 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 one Lieutenant General and four Major Generals.