COL I S RATHEE Vs. UNION OF INDIA

JUDGEMENT

(1.) The respondents have sought review of order dated 3rd May, 2005 allowing the petition of the petitioner and quashing the court martial finding/sentence and the confirmation order dated 1st September, 1998 and also holding that in case the petitioner had been deprived of any benefits because of the court martial finding/sentence, he would be entitled to all such consequential benefits.

(2.) While allowing the petition, the judgment of the Supreme Court, Union of India and Anr. v. Charanjit Singh Gill and Ors., was noticed and pursuant to Army Rule 40(2) stipulating that the members of a court martial proceedings for the trial of an officer shall be of rank not lower than the officer unless, in the opinion of the convening officer, officers of such rank are not available and the opinion of the convening officers is in writing in the convening order.

(3.) The counsel for the respondent had conceded that the convening order did not record any opinion of the convening authority that there was non-availability of Judge-Advocate who was similar to the rank of the petitioner or higher to his rank and, therefore, it was held that the requirement of Army Rule 40(2) was not satisfied and it was held that the composition of general court martial was vitiated.