Officiating person vested with full powers of higher post even if junior in rank, rules AFT

The Armed Forces Tribunal (AFT) has ruled that an officer discharging duties while officiating for a senior during the latter’s absence has all the authority vested in the higher post for the duration even if his rank is junior to the incumbent.

Dismissing an appeal filed by a soldier challenging his trial by a general court martial (GCM) for allegedly killing a junior commissioned officer and another soldier in his unit located at Pathankot, the Tribunal observed that the competent authority to pass relevant orders was the Brigadier commanding a brigade. The petitioner averred that in his case the orders were passed by a Colonel officiating at the brigade commander and hence were illegal.

“An officiating brigade commander is an officer who is in command of the Brigade during the absence of the regular incumbent. He is vested with all the powers of a brigade commander,” the Bench of Justice Sudhir Mittal and Air Marshal Manvendra Singh said in their order of October 16.

“The said officer is competent to perform all the functions of a brigade commander and to exercise the authority vested in him. Merely because he is of a lower rank than Brigadier, it cannot be said that he was incompetent to invoke Section 123 of the Army Act,” the Bench added.

The soldier is facing trial for two charges for culpable homicide not amounting to murder and causing voluntary hurt, under provisions of Section 69 of the Army Act read with Sections 304 and 323 of the Indian Penal Code.

The soldier had earlier been undergoing psychiatric treatment from military hospitals for paranoid schizophrenia. In September 2023, after morning PT when he had been left unattended, he commandeered a truck and ran over a JCO and injured another soldier who were standing in a group. Later he rammed the truck thrice into a tree.

After a court of inquiry into the incident, he was ordered to be tried by a GCM, which assembled in June 2024. In the interim, he was discharged from service on medical grounds and Section 123 of the Army Act, which empowers the force to try ex-personnel by court martial, was invoked.

He then moved the AFT, challenging the trial after his plea to jurisdiction of the court was dismissed by the GCM. On this, the Tribunal further ruled that appeals against interim orders passed by a GCM are not maintainable.