In the absence of lack of inherent jurisdiction to deal with the issue, the judgment is a nullity. It has no existence in law. It is well settled in law that the judgment passed is a nullity if it is passed by a court having no inherent jurisdiction

Part-2

26/02/2017

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10131 OF 2016
[Arising out of SLP(C) NO. 31556 OF 2013]
Mohammed Ansari ... Appellant
Versus
Union of India & Ors. ...Respondents
JUDGMENT

(Continued from previous issue)……
The posting of Army personnel in GREF units is in fact regarded as normal regimental posting and does not entitle the Army personnel so posted to any deputation or other allowance and it is equated with similar posting in the Army for the purpose of promotion, career planning etc. The tenure of Army personnel posted in GREF units is treated as normal Regimental Duty and such Army personnel continue to be subject to the provisions of the 1950 Act and the Army Rules, 1954 whilst in GREF. The Court further ruled that the Army personnel who form an important segment of GREF, even the directly recruited personnel who do not come from the Army are subjected to strict Army discipline having regard to the special character of GREF and the highly important role it is called upon to play in support of the Army in its operational requirements. Since the capacity and efficiency of GREF units in the event of outbreak of hostilities depends on their all time capacity and efficiency, they are subjected to rigorous discipline even during peace time, because it is elementary that they cannot be expected suddenly to rise to the occasion and provide necessary support to the Army during military operations unless they are properly disciplined and in fit condition at all times so as to be prepared for any eventuality.
10. After adverting to the constitutional validity of Section 29 of the 1950 Act, the Court deliberated upon SRO 329 and 330 issued under the said Act and the Army Rules 1954 and expressed thus:-
“The history, composition, administration, organisation and role of GREF which we have described above while narrating the facts clearly show that GREF is an integral part of the Armed Forces. It is undoubtedly a departmental construction agency as contended on behalf of the petitioners but it is distinct from other construction agencies such as Central Public Works Department etc. in that it is a Force intended primarily to support the Army in its operational requirement. It is significant to note that the Border Roads organisation, which is in overall control of GREF was originally created as part of Army Headquarters and it was only later, for reasons of high policy, that it was separated from Army Headquarters and placed under the Border Roads Development Board.”
11. Elaborating further, the Constitution Bench opined that GREF units carry out essentially those tasks which are otherwise carried out by Army Engineering Regiments and they provide engineering support to the Army both during peace time as also during hostilities. Dwelling upon the conditions of service and various facets, the Court ruled that the training includes not only drill, marching and saluting but also combat training including physical training such as standing exercises, beam exercises, rope work, route marches, etc. and combat engineering training including field engineering, handling of service explosives, camouflage, combat equipment, bridging, field fortifications, wire obstacles, etc. Moreover, the directly recruited personnel are taken up only after they voluntarily accept the terms and conditions of employment which include, inter alia, conditions 5(iv), 5(v), 5(vi) and 5(xi) and the said conditions make it clear that the directly recruited personnel may be required to serve anywhere in India and outside India and when directed, they would have to proceed on field service and if required, they would also be liable to serve in any Defence Service or post connected with the defence of India. The Court further noted that it is also stipulated in these conditions that on their appointment, the directly recruited personnel would have to wear the prescribed uniform while on duty and that they would be subject to the provisions of the 1950 Act and the Army Rules, 1954 as laid down in SROs Nos. 329 and 330 for purposes of discipline and hence, it is abundantly clear that GREF is an integral part of the Armed Forces and the members of GREF can legitimately be said to be members of the Armed Forces within the meaning of Article 33 of the Constitution.
12. In Sunil Kumar Sarkar (supra) a general court martial under the provisions of the 1950 Act was initiated against the respondent for certain allegation of defrauding the Border Road Organisation in which he was working as Superintendent, Buildings and Roads, Grade II. On conclusion of the proceeding, he was found guilty and sentenced to undergo rigorous imprisonment for one year. The order of conviction was confirmed by the competent authority. During the said period, the authorities acting under Rule 19 of the 1965 Rules issued a show cause notice as to why a suitable order should not be passed against him. The authority on the conclusion of the said departmental enquiry, dismissed the respondent from service. The review petition filed by the respondent therein did not meet with success. The conviction under the 1950 Act and the dismissal under the Army Rules was challenged before the Calcutta High Court in a writ petition and the learned Single Judge allowed the writ petition directing the authorities to pass a fresh order containing reasons. The said order was assailed in intra-court appeal and the Division Bench allowed the appeal opining that the court martial proceedings as well as disciplinary proceedings initiated against him were vitiated. This Court, being moved by the Union of India, allowed the appeal and quashed the judgment of the Division Bench. However, in that context it observed that in the course of the argument, a doubt was raised as to maintainability of the concurrent proceedings initiated against the respondent by the authorities, for the respondent had been punished for the same misconduct by them under the 1950 Act and as also under the 1965 Rules and in such a situation, it would amount to double jeopardy and thereby violating Article 14 of the Constitution of India. Dealing with the said facet, the Court held:-
“Having considered the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the respondent both under the Army Act and the Central Rules are concerned, they are unexceptionable. These two proceedings operate in two different fields though the crime or the misconduct might arise out of the same act. The court-martial proceedings deal with the penal aspect of the misconduct while the proceedings under the Central Rules deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap. As a matter of fact, Notification No. SRO-329 dated 23-9-1960 issued under the Central Rules and under sub-sections (1) and (4) of Section 4 of the Army Act makes this position clear. By this notification, the punishments that could be meted out under the Central Rules have been taken out of the purview of the court-martial proceedings under the Army Act. We further find support for this view of ours in the judgment of this Court in R. Viswan v. Union of India.”
13. The aforesaid decision makes it clear that the proceedings under the 1950 Act as well as the 1965 Rules are maintainable and do not amount to double jeopardy. The principle that is deducible is that the person aggrieved under the 1950 Act at that juncture can approach High Court and similarly, the same person aggrieved by the imposition of punishment under the disciplinary proceeding can challenge the same under Article 226 of the Constitution before the High Court. Thus, it is graphically clear that this Court did not think that the aggrieved party can agitate the grievance before the Central Administrative Tribunal under the 1985 Act.
14. In this regard, we may refer to the SRO 329 issued by the Government of India in exercise of its power under Section 4(1) of the 1950 Act. It reads as follows:-
“SRO 329 dated 23-9-1960 In exercise of the powers conferred by sub-sections (1) and (4) of Section 4 of the Army Act, 1950 (46 of 1950), the Central Government hereby:
(a) applies to the General Reserve Engineer Force, being a force raised and maintained in India under the authority of the Central Government, all the provisions of the said Act with the exception of those shown in Schedule ‘A’ subject to the modifications set forth in Schedule ‘B’; and
(b) directs that the officers mentioned in the first column of Schedule ‘C’ shall exercise or perform in respect of members of the said force under their command the jurisdiction, powers and duties incidental to the operations of the said Act, specified in the second column thereof.”

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