A. K. SIKRI, J. ( 1 ) PETITIONER was commanding 203 Army Engineer Regiment as a Lt. Col. ir1972. On 14. 11. 1972 he was tried and convicted by GCM under sections 47 and 62of Army Act and was sentenced to forfeiture of seniority of substantive rank of Majorfor two years and severe reprimand by the GCM vide order dated 22. 11. 1972petitioner was tried on two counts:- (A) That on 26. 2. 1972 while commanding 203 Army Engineer Regiment,petitioner improperly exposed Capt. A. K. Mathur to hazards of sailingknowing well that he had no previous experience of sailing, he was a nonswimmer and was not equipped with life jacket. (b) That on 5. 5. 1972 petitioner us. ed Criminal Force to Lt. R. K. Sharma ofthe same regiment by hitting him on the face with a rolled up file. ( 2 ) THIS sentence dated 22. 11. 1972 was confirmed by respondent No. 3 on 3. 4. 1973. Petitioner preferred an appeal under section 164 of the Army Act to the Chief ofarmy Staff namely respondent No. 2. This was however rejected by respondentno. 2 and decision was conveyed to the petitioner vide order dated 11. 3. 1974. Petitioner preferred yet another appeal to the Central Government namely respondentno. 1 and in response he received reply dated 5. 9. 1974 to the effect that since hehad already exhausted his right to appeal under the Army Act no cognizance couldbetaken of such an appeal filed by the petitioner before the Central Government. Thereafter the petitioner filed this petition in which he is seeking quashing oforders dated 5. 9. 1974,11. 3. 1974, 8. 7. 1972 and 3. 4. 1973. He has furtherprayed for directions to respondents to reinstate him in his original rank of Lt. Col. with all benefits. It may be pointed out that the petitioner was attached to another unitunder Army Instruction 106 of 1960 and asked to relinquish acting rank of Lt. Col. after 21 days on the basis of an illegal order dated 8. 7. 1972. He has further prayedin the petition that in the event his pleas are accepted he should be reinstated in hisoriginal rank of Lt. Col. w. e. f. 21/08/1972 till the age of his normal retirementon attaining the age of 52 years as per revised rules and regulations for Lt. Col. rank. 7. 1972. He has further prayedin the petition that in the event his pleas are accepted he should be reinstated in hisoriginal rank of Lt. Col. w. e. f. 21/08/1972 till the age of his normal retirementon attaining the age of 52 years as per revised rules and regulations for Lt. Col. rank. ( 3 ) MAIN contentions advanced by the petitioner, which formed the basis ofchallenge to the aforesaid orders, are as under:- (1) The composition of GCM was in violation of Army Rule 40 (2) read withdefence Services Regulation (DSR) for the Army para 459 (B ). It wassubmitted that the GCM should consist of the officers who are holding orhave held command appointments and equal ranks. The petitioner wascommanding Officer of corps unit as defined in Army Rule 187 (3) (f ). Therespondents are trying in their counter affidavit to twist the fact that thepetitioner was not a CO (Commanding Officer) of a corps but was an OC (Officer Commanding) of 203 Army Engineer Regiment. Army Rule187 (3) (f) defines corps as - every other unit composed wholly or partlyof persons subject to Army Act. Petitioner in support of his submission reliedupon the judgment of Supreme Court in the case of Lt. Col. P. P. S. Bedi andothers Vs. UOI reported in AIR 1982 SC 1413 . Despite that GCM formedconsisted of four Majors and only one Colonel where as 95 Lt. Col. wereavailable in Delhi area with the convening authority i. e. General Officercommanding Delhi Area (respondent No. 4) as per telephone directoryof Delhi Area 1972. The certificate regarding non-availability of eligibleofficers i. e. Lt. Col. to serve on the GCM was neither attached to theproceedings nor given to the petitioner at the time of his assignment. Therespondents are belied from the fact that on one hand they are alleging thatpara 459 (b) of the Regulations was not attracted in the petitioner s, case andon the other it is alleged by the respondents in their counter affidavit in replyto ground-B that a certificate in compliance of para 459 was attached. Thecertificate, if thus, attached was a later date and is an attempt by therespondents to mislead this Court. The petitioner was thus denied his rightof representation and objections to the members of the Court under Armyrule 34. Thecertificate, if thus, attached was a later date and is an attempt by therespondents to mislead this Court. The petitioner was thus denied his rightof representation and objections to the members of the Court under Armyrule 34. The respondents ignored their statutory duties and positive provisionsof law, that is, the petitioner s right to know what all was against him and itwas the duty of Presiding Officer under Army Rule 76 (2) to see that thepetitioner does not suffer any disadvantage in consequence of hisposition as a person under trial or of his ignorance. 2) It was next contended that two separate Courts of. Inquiry were held toinvestigate the two allegations. Procedure under Army Rule 180, whereincharacter or military reputation of the petitioner was involved, was notfollowed in both the cases. Courts of Inquiry were the foundations forinvestigating the allegations against the petitioner. Army Rule 180 ismandatory, if and when, Court of Inquiry is held as it is in the nature ofpreliminary investigations. The mandatory provision is to be followed whena person is liable to be charged with an indictable offence. Thus veryprocess of taking disciplinary action against the petitioner was started onthe basis of report of two Courts of Inquiry which have evidentary value. Petitioner in support of his submissions relied upon the judgment of MPHigh Court in the case of R. P. Dwivedi and others Vs. COAS being CWPNo. 4430/97. It is urged that GOC Delhi Area (respondent No. 4)recommended on 21. 6. 1972 on the Court of Inquiry held on complaint oflt. R. K. Sharma:a) Severe displeasure of GOC-in-C West Comd to be conveyed to thepetitioner:b) Petitioner should be posted out of 203 Army Engineer Regiment;c) Lt. R. K. Sharma should also be posted out of 203 Army Engineerregiment to foster respect for authority and in the interest of militaryefficiency. ( 4 ) THE GOC-in-C West Comd. (respondent No. 3) on the contrary with complete non-applicability of mind, abuse of power and without even looking into the papers with prejudice, influenced and pre-determined mind directed disciplinary action against the petitioner on a Court of Inquiry held for purpose of investigation of the complaint lodged by Shri Gyan Chand Sharma, (Father of Lt. R. K. Sharma ). (respondent No. 3) on the contrary with complete non-applicability of mind, abuse of power and without even looking into the papers with prejudice, influenced and pre-determined mind directed disciplinary action against the petitioner on a Court of Inquiry held for purpose of investigation of the complaint lodged by Shri Gyan Chand Sharma, (Father of Lt. R. K. Sharma ). It is submitted that no such enquiry was held and any order of GOC-in-C Western Command (respondent No. 3) dated 8/07/1972 on Court of Inquiry not held or any orders emanating from such orders for attachment of the petitioner on 31. 7. 1972 and relinquishing of acting rank on 21/08/1972 were conducted with prejudiced and pre-determined mind and are, therefore, illegal and ultra vires. In. Court of Inquiry in the allegation of exposing Capt. A. K. Mathur to hazards ofsailing, the petitioner was made a witness against himself in violation of Army Rule 180 and not afforded opportunity to be present through out the enquiry and crossexamine witnesses. justice is never a thing but quest . It was the duty of the Court of Inquiry to observe a standard behaviour and obligation for natural justice and fair play. Court of Inquiry is not to curtail the rights of a petitioner. Petitioner in support of his submission relied upon the judgment of this Court in the case of Subedarmewa Singh Vs. UOI and Ors. being CWP No. 231 of 1989. 3) It is urged that the petitioner was to remain on the strength of 203 Armyengineer Regiment against the appointment of Officer Commanding and noreplacement was to be appointed until completion of the disciplinary proceedingsvide Army Instruction 106 of 1960. Respondents No. 2 and3 did not bother aboutthese instructions and earmarked his junior for appointment on 3/07/1972itself when inquiry was in progress, ordered the petitioner to relinquish acting rankof Lt. Col. on 21/08/1972, struck him offappointment of Officer Commandingsometime inoctober/november 1972 and promoted and appointed his junior asofficer Commanding in February, 1973, well before completion of the disciplinaryproceedings that is, confirmation of the GCM proceedings on 3/04/1973 andpromulgation of sentence on 2/05/1973. Col. on 21/08/1972, struck him offappointment of Officer Commandingsometime inoctober/november 1972 and promoted and appointed his junior asofficer Commanding in February, 1973, well before completion of the disciplinaryproceedings that is, confirmation of the GCM proceedings on 3/04/1973 andpromulgation of sentence on 2/05/1973. The petitioner asked for documentsand authority on violations of Army Instruction 106 of 1960 for his removal from theappointment of Officer Commanding 203 Army Engineer Regiment and filedpetitions seeking redressal of his grievances but the respondents deliberatelyand with malafide intentions destroyed the records and did not give any reason fornot giving copies of the petitioner s personal documentation like IAFF -3010affecting his appointment and authority which are supposed to be maintained bythe Army Hqrs for the life time of the petitioner. The petitioner was thus removedfrom the appointment of Commanding Officer 203 Army Engineer Regiment withmala fide intentions and inducement to his junior and asked to relinquish his actingrank of Lt. Col. on 21/08/1972 resulting in penal consequences which isunconstitutional and ultra vires of the Act, Rules, Regulations and Army Instruction106 of 1960. Petitioner in support of his submission relied upon the judgment ofpunjab and Haryana High Court in the case of Lt. Col. Surjit Singh Vs. GOC 33mech. Div. and Ors. being CWP Bo. 5303 of 1987. 4) The next contention of the petitioner was that the principle of natural justice wasviolated inasmuch as the petitioner was pitted against a legally qualified prosecutorand the petitioner was denied even a defending officer o his choice. The petitionerwas not served with a notice by the convening officer, GOC Delhi Area (respondentno. 4) under Army Rule 97 (2) seven days before the commencement of trial that theprosecution will have a legally qualified officer. As is evident from respondentsversion that it was only when the Court assembled that the petitioner was informedthat the prosecutor was law graduate. The Court also failed in its duty under Armyrule 76 and 105 to adjourn for 7 days on cognisance of the fact that notice of 7days was not given to the accused to engage a counsel. The petitioner was neverapprised of his right to seek an adjournment for 7 days to engage a counsel evenafter the Court had assembled. The Court also failed in its duty under Armyrule 76 and 105 to adjourn for 7 days on cognisance of the fact that notice of 7days was not given to the accused to engage a counsel. The petitioner was neverapprised of his right to seek an adjournment for 7 days to engage a counsel evenafter the Court had assembled. The petitioner was thus gravely prejudiced,including misjoinder of charges, in his defence due to above legal and judicialflaws in the procedure adopted by the convening officer (respondent No. 4) as wellas the Presiding Officer and Judge Advocate of the GCM. ( 5 ) APART from the aforesaid legal submissions, petitioner has also tried to refutethe charges levelled against him on the ground that these charges are false andthe findings of the GCM are not proper inasmuch as respondents have not properlyappreciated the evidence in this regard. The petitioner made detailed submissionsin respect of each charge in his writ petition as well as written submissions. ( 6 ) IN addition to the aforesaid submissions, petitioner also challenged theorder of Central Government as well as Chief of Army Staff. In so far as the orderof the Central Government dated 5. 9. 1974 is concerned, it was submitted thatcentral Government did not exercise its powers under section 165 of the Army Acton the revision petition filed by the petitioner and therefore failed to exerciseits jurisdiction challenging the order dated 11. 3. 1974 of the respondent No. 2 bywhich petitioners appeal was dismissed. It was submitted that respondent No. 2did not apply his mind on the appeals of the petitioner and complaint of Lt. R. K. Sharmaand his father Shri Gyan Chand Sharma on the false accusations and contradictionsin their complaints. A judicial review of Courts of Inquiry and non-compliance ofarmy Rule 180 vis-a-vis violations of mandatory provisions of law in GCM proceedingwere sufficient to set aside the proceedings. He further did not appreciate theconduct of various staff officers under him with regard to appointment of a juniorofficer as commanding officer in place of the petitioner during pendency ofdisciplinary proceedings in violation of Army Instruction 106 of 1960 and destructionof documents with regard appointments. The appeal of the petitioner was howeverrejected despite the violation of mandatory provisions of law. He further did not appreciate theconduct of various staff officers under him with regard to appointment of a juniorofficer as commanding officer in place of the petitioner during pendency ofdisciplinary proceedings in violation of Army Instruction 106 of 1960 and destructionof documents with regard appointments. The appeal of the petitioner was howeverrejected despite the violation of mandatory provisions of law. ( 7 ) THE petitioner also submitted that such aforesaid impugned orders werepassed in violation of mandatory provisions of law which were humiliating to thepetitioner, petitioner sought premature retirement on 15. 2. 1974 which was acceptedand became effective on 28. 2. 1975. ( 8 ) THIS matter was listed for arguments on number of dates but nobody appeared on behalf of respondents. On 16. 12. 1999 matter was heard inpart and was adjourned to 23. 12. 1999 in the category of old cases. Thereafter the matter appeared regularly in the category of old matters. On 13. 1. 2000 as nobody appeared even on behalf of the petitioner, the writ petition was dismissed for nonprosecution. However immediately application for restoration was filed by the petitioner and on 20. 1. 2000 the said application was allowed and the writ petition was restored to its original number. Petitioner was directed to inform the counset for the respondents in writing about the next date i. e. 27. 1. 2000. On 27. 1. 2000 also nobody appeared on behalf of the respondents inspite of information about thecase having been given to the counsel for the respondents. Still, the case was adjourned to 10. 2. 2000 and again petitioner was directed to inform thelearned counsel for the respondents about the next date of hearing and file an affidavit to this effect. He did so. ( 9 ) STILL nobody appeared on behalf of the respondents even thereafter. In thesecircumstances, I had no option but to reserve the judgment on 10. 3. 2000. ( 10 ) I have gone through the pleadings, considered the submissions made by thepetitioner and have noted the stand of the respondents as contained in thecounter affidavit. He did so. ( 9 ) STILL nobody appeared on behalf of the respondents even thereafter. In thesecircumstances, I had no option but to reserve the judgment on 10. 3. 2000. ( 10 ) I have gone through the pleadings, considered the submissions made by thepetitioner and have noted the stand of the respondents as contained in thecounter affidavit. ( 11 ) AS far as other contentions of the petitioner namely two separate Courts of Inquiry could not be held or that principles of natural justice were violated as petitioner was pitted against a legally qualified prosecutor are concerned, it is seen that these contentions are raised in the written submissions but not in the writ petition, and therefore, respondents had no chance to meet these submissions in their counter affidavit. The same therefore cannot beconsidered at this stage. Petitioner had also made detailed submissions in the merits of the allegations and submitted that findings of the GCM were not proper inasmuch as respondents had not properly appreciated evidence in this regard. However, this Court under Article 226 of the Constitution is not sitting as an Appellate Authority over the findings of the GCM. It is not the function of this Court to reappreciate the evidence. It cannot be said that the case was of no evidence . Once that is the position, it is not permissible for this Court to substitute its own findings for that of GCM. ( 12 ) THERE is no dispute that as per Army Rule 40 (2) read with para 459 (B) of the Defence Services Regulations, GCM should consist of officers who are holding or have held command appointments and equal ranks. It is also not in dispute that GCM which was formed consisted of 4 Majors and 1 Colonel. The contention of the petitioner is that constituting the GCM with Majors and not Lt. Colonel, although available, was invitation of Army Rule 40 (2 ). On the other hand, it is stated by the respondents in the counteraffidavit that petitioner was not a commanding officer ofthe Corps, but was an officer commanding 203 of Army Engineer Regiment. However this contention of the respondents is not correct. Army Rule 187 (3) (f)defines corps as every other unit composed wholly or partly of persons subject to Army Act . However this contention of the respondents is not correct. Army Rule 187 (3) (f)defines corps as every other unit composed wholly or partly of persons subject to Army Act . The unit of which the petitioner was officer commanding was admittedly a unit composed of persons subject to Army Act. Further, respondents in their counter affidavit could not refute that there were 95 Lt. Colonels available in Delhi area with the convening authority i. e. General Officer Commanding, Delhi Area. It has been held by Supreme Court in the case of Lt. Col. P. P. S. Bedi and Ors. Vs. UOI reported in AIR 1982 SC 1413 that for the composition of GCM, onemust strive to secure services of officers of different Corps, or departments and notnecessarily officers of the Corps, departments to which delinquent officer belongs. Moreover, I must notice contradictory stand taken by the respondents in the counteraffidavit. On the one hand, it is stated that petitioner was not Commanding officerand therefore GCM consisted of 4 Majors and 1 Colonel was proper and para (2) of the Defence Services Regulations for the Army was not applicable. On theother hand, it is stated that as per para 459 (B) of the Regulations was compliedwith and certificate to the effect that no Lt. Col. was available, in compliance ofpara 459 was attached. It is thus clear that petitioner was denied his right ofrepresentation and objections to the members of the Corps, under Army Rule 34and the composition of GCM being inviolative of Army Rule 40 (2), any trial by themand consequent punishment imposed upon the petitioner is bad in law. ( 13 ) THIS writ petition is accordingly allowed. The impugned order of punishmentdated 22. 11. 1972 as confirmed on 3. 4. 1973 is hereby set aside. Order dated11. 3. 1974 rejecting the appeal of the petitioner is also set aside. However as thepetitioner had sought premature retirement which, was accepted and becameeffective on 28. 2. 1975 and as the impugned orders and quashed only on technicalground and fresh enquiry is not ordered keeping in view that the matter is almost 25years old, the only relief to which the petitioner is held entitled to, in the facts andcircumstances of this case, is that petitioner should be treated as retired from Armyas Lt. Colonel and not as Major and be paid pension accordingly. Colonel and not as Major and be paid pension accordingly. However the will not beentitled to any other monetary benefits. His pension as Lt. Colonel be fixed as on the date of his voluntary retirement as Lt. Colonel on the basis as if no such punishment was given and arrears of pension be paid to him within four months from today. Writ petition is allowed in the aforesaid terms. No order as to costs.