JUDGMENT 1. - This petition has been filed by the deceased-petitioner Rati Pal Pandey, whose legal representatives have been taken on record, seeking to challenge the entire proceedings of the General Court Martial, including the charge-sheet, convening order, punishment order, confirming order, and the order of the Appellate Authority, then other prayer made is for reinstatement with all consequential benefits. Annexure-1 is the charge-sheet, while Annexure-2 are the proceedings of General Court Martial, and Annexure-3 is the order imposing the punishment, as under: "(a) To be reduced to the ranks, (b) To be dismissed from the service, and (c) To suffer rigorous imprisonment for three months." 2. This order has been affirmed in appeal. It is informed that after Annexure-1, during proceedings of the Court Martial, the charges were amended from time to time. 3. The very lengthy and bulky writ petition has been filed, and then the same was amended again. Likewise, the proceedings of the Court Martial are also quite bulky, starting from page 78 to page 632. A reply and rejoinder also had been filed. 4. The short question, which has been raised, by the learned counsel for the petitioner, going to the root of the matter, and vitiating the entire Court Martial proceedings is, that the convening order, in this case, had been passed by the Group Captain Shri A.S. Murty, which finds place at page 260 of the paper book. Though the order purports to have been issued from the office of Air Martial PR Singh, ADC Air Officer Commanding-in-Chief, South Western Air Command, Indian Air Force, and reads to be, orders passed for the Air Marshal. However, it has neither been signed, nor even been initiated, by the said Air Martial/Air Officer Commanding-in-Chief, who was the only competent authority to pass such order. 5. Learned counsel referred to the provisions of Rule of the Air Force Rules, as were prevalent at the relevant time, and contended that according to sub-rule (3), it is the Officer convening a Court Martial, who is to appoint or detail the officers to form the Court, and is also to appoint or detail such waiting officers as he thinks expedient. Likewise, he may also appoint or detail interpreter, where he consider the services of an interpreter to be necessary. This, having not been done, by the competent authority, all subsequent proceedings are vitiated. Likewise, he may also appoint or detail interpreter, where he consider the services of an interpreter to be necessary. This, having not been done, by the competent authority, all subsequent proceedings are vitiated. Learned counsel submitted, that during proceedings of the Court Martial also this objection was raised, but then it was turned down, then this objection was also raised in para 27 of the memo of appeal, Annexure-4, but then appeal has been disposed of by a non- speaking order, and the contentions raised in the appeal, running into 56 long typed pages, have not been considered. Learned counsel for the petitioner placed reliance on the judgment of Hon'ble the Supreme Court, in Union of India & Ors. v. Harish Chandra Goswami, reported in 1999 (4) SCC 575 . 6. On the other hand, learned counsel for the respondent submitted, that a look at the convening order, finding place at page 260 of the paper book, itself shows, that it purports to be orders by the Air Martial/Air Officer Commanding-in-Chief, and simply because it has been signed by the Group Captain, for Air Martial, it cannot be said that there is non-compliance of Rule 43(3). Learned counsel invited my attention to the proceedings of the Court Martial, relevant at page 289, to show, that there is endorsement on the file, in the green ink, by the Air Martial, to the effect, "to be tried by a General Court Martial", and thus, it was the competent authority, who had passed the orders, and there is nothing wrong in the convening order dated s 24.4.1986, being signed by the Group Captain. It is contended, that the Act relating to issuance of such order is only a procedural aspect, and the competent authority had applied his mind, for the purpose of sub-rule (1) and (2). 7. I have considered the submissions. For ready reference, I may quote o the provisions of Rule 43 as they existed at the relevant time, which reads as under: "43. 7. I have considered the submissions. For ready reference, I may quote o the provisions of Rule 43 as they existed at the relevant time, which reads as under: "43. Convening of general and district court- martial - (1) An officer before convening a general or district court-martial shall first satisfy himself that the charges to be tried by the court are for offence 5 within the meaning of the Act, and that the evidence justifies a trial on those charges, and if not so satisfied, shall order the release of the accused, or refer the case to superior authority. (2) He shall also satisfy himself that the case is a proper one to be tried by the description of court-martial he proposes to convene. (3) The officer convening a court-martial shall appointed or detail the officer to form the court, and may also appoint or detail such waiting offices as he thinks expedient. He may also, where he considers the services of an interpreter to be necessary, appoint or detail an interpreter to the court. (4) The officer convening a court-martial shall send to the senior member thereof, the original charge sheet on which the accused is to be tried, the summary of evidence and the order for the assembly of the court-martial." 8. A look at the judgment in Harish Chandra Goswami's case shows, that that was a case relating to the Armed Forces, and the relevant provisions governing was Rule 37 of the Army Rules, and the provisions of sub-rule (1), (2) & (3) of that Rule 37, and Rule 43 of the present Rule are verbatim the same. In that view of the matter, the judgment in Harish Chandra's case provides sufficient authority, and guidance, for deciding the controversy involved in the present case. 9. In Harish Chandra's case, the precise point, which appealed to the High Court was, that the Constitution of the Court Martial was not done by the Commanding Officer, and thus, Rule 37(3) was violated, and consequently the Court Martial had no jurisdiction to proceed with the trial, and entire proceedings. well as the order of punishment were therefore found to be vitiated, and were quashed. well as the order of punishment were therefore found to be vitiated, and were quashed. The contention raised before the Hon'ble Supreme Court was that the order for assembly of General Court Martial, a copy of which had been furnished to the delinquent, before the trial, was the relevant order, which was signed by the Colonel Officiating Brigadier. A, for General Officer Commanding 1 Corps, and that, the same was the order appointing personnel of the Court Martial, and was made only by the Commanding Officer, namely Lt. Gen., R.N. Mahajan, and that, that order could be signed by the Convening Officer personally, or for him by the Staff Officer, authorised by the custom of service, to sign his orders, and since it was signed by the Colonel Officiating Brigadier, who was authorised by Lt. Gen., the requirement of Rule 37 was fully satisfied. Considering the contention, Hon'ble the Supreme Court noticed, that no record, whatever, to show, that the personnel of the Court-Martial was appointed by, or nominated by, the Lt. General is there in the file, that the order for the assembly of a General Court Martial did not contain, either the signature, or the initial, of the Lt General, and was signed only by the Colonel, and none else. With these findings, it was concluded, that the order cannot be considered, to be an order, evidencing appointment of a personnel of a Court Martial, by the Lt. General. The contention raised on behalf of the Union of India, about the provisions of sub-rule (3) being only procedural in nature, and there being no need for application of mind by the Commanding Officer, in the matter of appointment of personnel of Court Martial, was not sustained, as it was found to have lost relevance, in view of the stand taken by the Union of India, that there was an order by the Commanding Officer, appointing or detailing the officers to form the Court Martial, while since the form, in which the appointment was made, did not contain either signatures or initials of Lt. Gen., the contention was not accepted. Then it was also observed, that even assuming, that the Lt. Gen. Gen., the contention was not accepted. Then it was also observed, that even assuming, that the Lt. Gen. passed an oral order, there is no record of any kind whatever to prove it, and that, the form for assembly of a Court Martial, was not contemporaneous to such oral order, if any, and that, in absence of any record whatever, to show that the appointment of the personnel of the Court Martial was, by the Lt. General, it cannot be said, that requirement of Rule 37 was fully satisfied. 10. In the present case also, what I find, even from, what was shown to me, at page 289 of the paper book is, that only order, passed by the Air Martial was, to be tried by a General Court Martial", this, at best, could be said, to tantamount to compliance of sub-rule (1) and (2) of Rule 43, but then, it does not have the effect of complying with the requirements of Rule 43(3). The case was taken up on 30th January 2006, on which date, it could not be completed, and learned counsel for the respondent was verbally directed, to make available, or perusal of the Court, the original record to satisfy my conscience, about any order being there on the record, to comply with the requirement of Rule 43(3), but then, learned counsel for the respondent expressed inability, by contending, that the record has been weeded out. 11. In that view of the matter, I can go, at best, with the reproduction of the order, as made at page 289 of the paper book, and wherein, there is nothing to show, the compliance of Rule 43(3). 12. That being the position, on the face of the judgment of Hon'ble the Supreme Court, in Harish Chandra's case, there is no escape from the conclusion, that the Court Martial was convened in violation of the provisions of Rule 43(3), and consequently, it had no jurisdiction to proceed with the trial, and the obvious consequence is, that the entire proceedings, as well as the order of punishment, are vitiated. 13. Accordingly, the writ petition is allowed. The entire proceedings of the General Court Martial, including the order of punishment, and its confirmation, are quashed. The parties shall bear their own costs of this writ petition.Writ Petition Allowed - Proceeding Quashed. *******