The High Court
Case Details
WP(C) 4074/2012 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH Whether members of General Reserve Engineer Force, commonly known as GREF and wh ich is involved in construction, making and maintenance of roads, in the boarder areas, can be regarded as members of Armed Forces? Can the members of GREF be r egarded as persons subject to the Army Act, 1950? Whether a member of the GREF c an seek a relief, which a person is, otherwise, entitled to receive from the Cen tral Administrative Tribunal constituted under the Administrative Tribunals Act, 1985? Do the members of GREF fall, for all intents and purposes, within the amb it of Armed Forces Tribunal Act, 2007? Can a person, as a member of GREF, invoke extra-ordinary jurisdiction of the High Court under Article 226 and/or Article 227 of the Constitution of India on a subject, which is, otherwise, covered by A rmed Forces Tribunal Act, 2007? These are some of the prominent questions, which the present writ petition has raised. The material facts, leading to the present writ petition, made under Art 2. icle 226 of the Constitution of India, may be set out as under: (i)
Legal Reasoning
The respondent herein made an application, in the Central Administrative Tribunal, Guwahati Bench, his case being, in brief, thus: (a) The respondent herein was appointed, in Boarder Roads Engineering Se rvices (in short, BRES), as an Assistant Executive Engineer (Electrical & Mechan ical) in the year 1985 by order, dated 03.06.1985, by the Government of India, M inistry of Shipping and Transport. The respondent herein was promoted, on 30.05. 1997, to the post of Executive Engineer (Electrical & Mechanical) by the letter, dated 12.07.2005, issued by Boarder Roads Development Board (in short, BRDB). (b) The respondent herein has already put in 26 years 8 months of service as an officer of the Organised Group A Services and, as a Superintending Engineer, he has already put in more than 6 years 7 months of service and that having so put in uninterrupted service for such a long period of time, he has become entit led to get the benefit of non-functional upgradation, meant for officers of Orga nised Group A Services in Pay Band 4 and Pay Band 3, but he has been arbitrarily denied his due financial upgradation solely on the ground that he has not done the stipulated command posting of two years in terms of Para (c) of the BRDB’s N ote, dated 10.01.2011. In this regard, the authorities concerned are oblivious o f the fact that in the hierarchical structure of the GREF, there is just one com mand appointment for 14 aspirants and if the stipulated period of two years of c ommand post is required to be ensured for each of the 14 aspirants, such as, the respondent herein, who are, otherwise, eligible for such command appointment, t hen, an applicant, to become eligible for financial upgradation, would take a pe riod of 30 years; whereas a person, such as, the respondent herein, would have, otherwise, been entitled to receive financial upgradation if the requirement of command appointment had not been insisted upon. The respondent herein accordingl y sought for appropriate reliefs. The application, so made by the respondent, ga ve rise to Original Application (in short, OA) No.102/2012. Resisting, at the very threshold, the OA, so filed by the respondent her 3. ein as applicant, the present petitioners, as respondents in the OA, contended t hat the Central Administrative Tribunal had no jurisdiction to deal with grievan ces of the applicant-respondent herein inasmuch as all members of the GREF, for reasons of discipline, fall under the Ministry of Defence by virtue of notificat ions, issued in this regard by the Central Government by taking recourse to Sect ion 4 of the Army Act, 1950, and the Army Rules, 1954, for the purpose of discip line of the members of the GREF, and they become, thus, members of the Armed For ces and, as a member of the Armed Forces, a member of the GREF cannot invoke the learned Central Administrative Tribunal’s jurisdiction inasmuch as the learned Tribunal’s jurisdiction stands barred by the provisions of Section 2(a) of the A dministrative Tribunals Act, 1985. Notwithstanding the preliminary objection, so raised, the learned Tribun 4. al passed an order, on 18.06.2012, holding that it had the jurisdiction to enter tain an OA filed by the members of the GREF.
Legal Reasoning
5. Aggrieved by the decision, so reached, on the question of maintainabilit y of the OA, the respondents, in the OA, have filed, as petitioners, this writ p etition seeking to invoke this Court’s jurisdiction under Article 226 and get th e order, dated 18.06.2012, passed by the learned Tribunal, set aside and quashed . 6. We have heard Mr. Mr. R. Sharma, learned Assistant Solicitor General of India, for the petitioners, and Mr. S. Bhattacharjee, learned counsel, appearing for the respondent. We have also heard Mr. U.K. Nair, learned counsel, who has appeared as amicus curiae. 7. While considering the present writ petition, it needs to be noted that t here is no dispute before us that in terms of the provisions of Section 2(a) of the Administrative Tribunals Act, 1985, Central Administrative Tribunal is not e mpowered to deal with matters relating to any member of the Naval, Military or A ir Forces or of any other Armed Forces of the Union. Logically extended, this m akes it clear that if the members of the GREF are members of the Armed Forces, t hen, the Central Administrative Tribunal would have, in the light of the provisi ons of the Administrative Tribunals Act, 1985, no jurisdiction to deal with thei r cases. 8. The question, therefore, would be whether a member of the GREF can be re garded as a member of Armed Forces, for, such a member, if regarded, in law, as a member of the Armed Forces, then, would the provisions, embodied in the Admini strative Tribunals Act, 1985, not be available to such a member ? 9. The first question, therefore, which falls for consideration, is: whethe r a member of the GREF is a member of Armed Forces? This question is no longer r es integra inasmuch as a Constitution Bench of the Supreme Court, in R. Viswan a nd others Vs. Union of India and others (AIR 1983 SC 658), had the occasion to d eal with the question of applicability of the Army Act, 1950, to the members of the GREF. In R. Viswan’s case (supra), wherein the application of some of the prov 10. isions of the Army Act, 1950, and the Rules, framed thereunder, to the member of the GREF, by issuance of notifications by the Government of India, was the main subject of challenge, it was contended by R. Viswan, a member of the GREF, that in the light of the provisions of Article 33 of the Constitution of India, the GREF is neither an Armed Force nor a Force charged with the maintenance of publi c order and, hence, the notifications, issued for applying certain provisions of the Army Act, 1950, and Chapter IV of the Army Rules, 1954, to the GREF, were u
Decision
ltra vires. 11. Having analysed the provisions of the Constitution, the provisions of t he Army Act and the conditions of service of a member of the GREF, the Court, in R. Viswan’s case (supra), concluded, at para 14, that the member of the GREF ar e members of the Armed Forces within the meaning of Article 33 of the Constituti on of India. The relevant observations, made, in this regard, in R. Viswan’s ca se (supra), read thus: (cid:28)We may make it clear that it is only in regard to the members of GREF that we h ave taken the view that they are members of the Armed Forces within the meaning of Article 33. So far as casual labour employed by GREF is concerned, we do not wish to express any opinion on this question whether they too are members of the Armed Forces or not, since that it is not a question which arises for considera tion before us. The writ petitions are accordingly dismissed with no order as to costs. The special leave petitions will also stand rejected. (cid:29) (Emphasis is added) 12. From what have been observed and held above, in R. Viswan (supra), there can be no escape from the conclusion that the members of the GREF are also the members of Armed Forces within the meaning of Article 33. In this regard, the Su preme Court, in R. Viswan (supra), also held that GREF is an integral part of th e Armed Forces and the members of GREF can legally be said to be members of the Armed Forces within the meaning of Article 33. The relevant observations, appear ing in R. Viswan (supra), read as under: (cid:28)10. It is undoubtedly true that as stated by the Minister of Defence, GREF is a civilian construction force and the members of GREF are civilian employees unde r the administrative control of the Border Roads Development Board and that the engineer officers amongst them constitute what may be designed as \Central Civil Services, within GREF, but that does not mean that they cannot be at the same t ime form an integral part of the Armed Forces. The fact that they are described as civilian employees and they have their own special rules of recruitment and a re governed by the Central Civil Service (Classification, Control and Appeal) Ru les, 1965 is not determinative of the question whether they are members of the A rmed Forces. The question whether the members of GREF can be said to be members of the Armed Forces for the purpose of attracting the applicability of Article 33 must depend essentially on the character of GREF, its organisational set up, its functions, the role it is called upon to play in relation to the Armed Force s and the depth and intimacy of its connection and the extent of its integration with the Armed Forces and if judged by this criterion, they are found to be mem bers of the Armed Forces, the mere fact that they are non-combatant civilians go verned by the Central Civil Services (Classification Control and Appeal) Rules 1 965, cannot make any difference. (AIR 1983 SC 658 to 673, 674). Applying the afo resaid criteria in determining the status of members of GREF, the Court held: (cid:28)It is abundantly clear from those facts and circumstances that GREF is an integ ral 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. (cid:29) (Emphasis is adde d) 13. From the above observations, made in R. Viswan (supra), it becomes clear that GREF is a civilian construction force and the members of the GREF are civi l employees under the administrative control of the Border Roads Development Boa rd. At the same time, however, GREF is an integral part of the Armed Forces and the members of GREF can legally be said to be members of the Armed Forces within the meaning of Article 33 and, hence, the provisions of the Army Act, 1950, are , for the purpose of discipline, extended, though to a limited extent, to the me mbers of the GREF. The fact that the members of the GREF are described as civil employees and they have their own special rules of recruitment and are governed by the Central Civil Service (Classification, Control and Appeal) Rules, 1965, i s not determinative of the question whether they are members of the Armed Forces or not. The answer to the question, whether the members of the GREF can, for th e purpose of attracting applicability of Article 33, be said to be members of th e Armed Forces, must depend essentially on the character of the GREF, its organi sational set up, its functions and the role it is called upon to play in relatio n to the Armed Forces and the depth and intimacy of its connection and the exten t of its integration with the Armed Forces. The mere fact that the members of GR EF are non-combatant civilians and they are governed by the Central Civil Servic es (Classification Control and Appeal) Rules 1965, cannot make any difference. What emerges from the above discussion is that notwithstanding the fact 14. that the provisions of the Central Civil Services (Classification, Control and A ppeals) Rules, 1965, are applicable to a member of GREF, a member of GREF is non etheless a member of the Armed Forces by virtue of the notifications, which have been issued by the Central Government by taking recourse to its powers under Se ction 4 of the Army Act, 1950, and since a member of the GREF is a member of the Armed Forces within the meaning of Article 33 of the Constitution of India, Sec tion 2(a) of the Administrative Tribunals Act, 1985, would make the provisions, embodied in the Administrative Tribunals Act, 1985, inapplicable to the members of the GREF inasmuch as Section 2(a) of the Administrative Tribunals Act, 1985, clearly lays down that the provisions of this Act shall not apply to, amongst ot hers, any member of the Naval, Military or Air Force or of any other Armed Force s of the Union. A member of the GREF, therefore, cannot invoke the provisions o f Section 14 and/or Section 19 of the Administrative Tribunals Act, 1985. 15. The above inference gets strengthened from the order, dated 09.01.1998, passed, in Special Leave Petition (Civil) No.8096/1995 (Union of India Vs. Smt. Vidyawati). 16. In Vidyawati’s case (supra), husband of the petitioner, Vidyawati, was a ppointed, on temporary basis, in GREF and was, subsequently, awarded quasi perma nent status and, later on, promoted to the post of Cook. Vidyawati’s husband, Mu rarilal, suffered from heart ailment in the month of December, 1980, and remaine d under treatment for heart ailments until he was discharged on being declared p hysically unfit for service. Less than nine months after his discharge from GREF , Vidyawati’s husband, Murarilal, died. Vidyawati, then, applied to the authorit ies concerned seeking to obtain retiral benefits arising out of the death of her husband. As the same were not made available to her, she applied to the Central Administrative Tribunal, Allahabad Bench. This application gave rise to Origina l Application No.1195/1993. The present petitioners, as respondents in the OA No .1195/1993, resisted the maintainability of the proceeding on the ground that th e GREF is an integral part of the Armed Forces in terms of the Government of Ind ia’s letter, dated 14.08.1985, and SRO No.329, dated 23.09.1969, and, hence, the Central Administrative Tribunal had no jurisdiction. Having taken into account the fact that service of Vidyawati’s husband was governed by the Central Civil S ervices (Temporary Service) Rules, 1965, the learned Tribunal concluded, in its order, dated 27.07.1994, that it had the jurisdiction in the matter and, accordi ngly, directed the Union of India to work out the gratuity payable to the husban d of the applicant, Vidyawati. Aggrieved by the order, so made, the Union of In dia filed a Special Leave Petition, which gave rise to Special Leave Petition (C ivil) No.8096/1995. The Supreme Court passed an order, on 09.01.1988, in Vidyawati’s case (s 17. upra), taking the view that members of GREF cannot, in the light of the decision , in R. Viswan (supra), move Central Administrative Tribunal and, hence, the imp ugned decision of the learned Tribunal that it had jurisdiction to deal with the matter was not sustainable. The Supreme Court accordingly set aside the order, dated 27.07.1994, passed by the learned Tribunal with liberty, however, given to the applicant, Vidyawati, to move the High Court for appropriate reliefs, if sh e is so desired. We may pause, at this stage, to point out that at the time, when the ord 18. er, dated 09.01.1988, was made, the decision, in L. Chandra Kumar Vs. Union of I ndia, reported in (1997) 3 SCC 261, had not been rendered and while ousting the jurisdiction of the High Court, under Articles 226 and 227 of the Constitution o f India, the Administrative Tribunal’s Act, 1985, preserved and saved the Suprem e Court’s powers under Article 136 and, hence, a person, aggrieved by an order o f a Central Administrative Tribunal, could have challenged the same by invoking Article 136. 19. Coupled with the above, we may also point out that though the order, dat ed 09.01.1988, was passed, in Vidyawati’s case (supra), by the Supreme Court in a Special Leave Petition, it needs to be borne in mind that the Supreme Court’s observations, while making the order, dated 09.01.1988, would amount to declarat ion of law under Article 141 of the Constitution of India and shall be binding o n all courts and tribunals within the territory of India. A reference, in this r egard, may be made to the case of Kunhayammed and others-vs-State of Kerala and others, reported in (2000) 6 SCC 359, more particularly, para 27 and para 44 (v) , wherein the Supreme Court has clearly laid down that if provision for appeal i s made against an order passed by a court and an appeal is preferred, then, the decision of the lower court/forum gets merged into the decision of the appellate court and it is the decision of the appellate court, which subsists, remains op erative and is apt for enforcement in the eye of law, but the position of the Sp ecial Leave Applications, made under Article 36, is, somewhat, different in the sense that the jurisdiction, conferred by Article 136 of the Constitution, is di visible into two stages inasmuch as the first stage is up to the disposal of the prayer for special leave to file an appeal and the second stage commences if an d when the leave to appeal is granted and the special leave petition is converte d into an appeal. In no uncertain words, laid down the Supreme Court, in Kunhay ammed’s case (supra), that the doctrine of merger is not a doctrine of universal or unlimited application; rather, it depends on the nature of jurisdiction exer cised by the superior forum and the content or subject-matter of challenge laid shall be determinative of the applicability of the doctrine of merger and that t he superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. It is further observed, in Kunhayammed’s case (supra), that under Article 136 of the Constitution, the Supreme Court may rever se, modify or affirm the judgement/decree/order appealed against only when it ex ercises appellate jurisdiction (i.e., after the leave to appeal is granted) and not while it exercises the discretionary jurisdiction on the question as to whet her the petition for special leave to appeal shall be granted or not and, thus, the doctrine or merger, in such cases, comes into play if the special leave to a ppeal is granted and not when the question as to whether the leave would be gran ted or not is considered and decided. It has been pointed out, in Kunhayammed’s case (supra), by the Supreme Court that an order, refusing special leave to app eal, may be a non-speaking order or a speaking one and, in either case, it does not attract the doctrine of merger inasmuch as an order, refusing special leave to appeal, does not stand substituted in place of the order under challenge and that what such an order implies is that the Supreme Court was not inclined to ex ercise its discretion so as to allow the appeal being filed. 20. It is extremely pertinent to note that in Kunhayammed’s case (supra), th e Supreme Court has concluded that if an order refusing leave to appeal is a spe aking order, i.e., when reasons are assigned for refusing the grant of leave, th en, the order has two implications. Firstly, the statement of law, contained in such an order, is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of la w, whatever is stated in the order, are the findings recorded by the Supreme Cou rt, which would bind the parties thereto and also the Court, tribunal or authori ty in any proceedings subsequent thereto by way of judicial discipline, the Supr eme Court being the Apex Court of the country. (See also State of Arunachal Prad esh and Ors. vs. Nefa Udyog and Ors, 2004(2) GLT 724. (Emphasi s is added) 21. In the light of the decision, reached by the Supreme Court, in Vidyawati ’s case (supra), one can have no escape from the conclusion, and we do conclude, that as far as Central Administrative Tribunal is concerned, a member of the GR EF is not covered, in the light of the decision in R. Viswan (supra) read with t he decision in Vidyawati’s case (supra), by the provisions of the Administrative Tribunals Act, 1985, and, hence, a member of the GREF would be disentitled from invoking the jurisdiction of the Central Administrative Tribunal. 22. The incidental question, which has arisen, in the present writ petition, is: whether a member of the GREF is covered by the provisions embodied in the A rmed Forces Tribunal Act, 2007? 23. rmed Forces Tribunal Act, 2007, which reads as under: The answer to the question, posed above, brings us to Section 2 of the A (cid:28)Applicability of the Act : (1) The provisions of this Act shall apply to all persons subject to the army Ac t, 1950, (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 195 0 (45 of 1950) (2) This Act shall also apply to retired personnel subject to the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950 (45 of 1950) including their dependants, heirs and successors, in so far as it relat es to their service matters. (cid:29) 24. From a bare reading of the provisions of Section 2 of the Armed Forces T ribunal’s Act, 2007, what becomes transparent is that Armed Forces Tribunal Act, 2007, applies, inter alia, to a person, who is subject to the Army Act, 1950. 25. In the case of GREF, the provisions of the Army Act, 1950, have been app lied, though to a limited extent, by virtue of notifications, which have been is sued, in this regard, by the Central Government taking recourse to the powers un der Section 4. For the purpose of clarity, Section 4 of the Army Act, 1950, be ing relevant, is reproduced below: (cid:28)4. Application of Act to certain forces under Central Government. (1) <http://indiankanoon.org/doc/493495/> The Central Government may, by notific ation, apply, with or without modifications, all or any of the provisions of thi s Act to any force raised and maintained in India under the authority of that Go vernment, 3[ and suspend the operation of any other enactment for the time being applicable to the said force. (2) <http://indiankanoon.org/doc/1219238/> The provisions of this Act so applied shall have effect in respect of persons belonging to the said force as they hav e effect in respect of persons subject to this Act holding in the regular Army t he same or equivalent rank as the aforesaid persons hold for the time being in t he said force. (3) <http://indiankanoon.org/doc/441978/> The provisions of this Act so applied shall also have effect in respect of persons who are employed by or are in the s ervice of or are followers of or accompany any portion of the said force as they have effect in respect of persons subject to this Act under 1[ clause (i) of su b- section (1) of section (2)]. (4) <http://indiankanoon.org/doc/1222215/> While any of the provisions of this A ct apply to the said force, the Central Government may, by notification, direct by what authority any jurisdiction, powers or duties incident to the operation o f these provisions shall be exercised or performed in respect of the said force. (cid:29) 26. A minute reading of the provisions of Section 4 of the Army Act, 1950, c learly reveals that when the provisions of the Army Act, 1950, are made applicab le to a person or group of persons, then, such a person or group of persons woul d be treated as a person or persons subject to the Army Act, 1950. Viewed from this angle, when the Central Government has extended, by notifications, the prov isions of the Army Act, 1950, to the members of the GREF, the members of the GRE F would, ordinarily, be required to be treated as persons subject to the Army Ac t, 1950. 27. What is, however, inescapable to note is that the Army Act has not been applied, as a whole, to the members of the GREF. Far from this, limited numbers of provisions have been made applicable to the members of the GREF for the purpo se of maintaining discipline. When the Army Act, 1950, has not been made applica ble, as a whole, to a member of GREF, the effect is that a member of GREF would, ordinarily, be a person subject to the Army Act, 1950, particularly, when one n otices that the Central Government is empowered, under Section 4(1) of the Army Act, 1950, to apply all or any of the provisions of the Army Act, 1950, to any f orce raised and maintained in India under the authority of the Central Governmen t. 28. Thus, even though limited provisions of the Army Act, 1950, have been ma de applicable to the members of the GREF, Section 4 of the Army Act, 1950, when read as a whole, makes it abundantly clear that though limited provisions of the Army Act, 1950, have been made applicable to the members of the GREF, the membe rs of the GREF would nevertheless be regarded as persons subject to the Army Act , 1950, to the extent that the provisions of the Army Act, 1950, in a given situ ation, cover their act and in respect of the provisions of the Army Act, 1950, w hich have been made available to the members of the GREF, a member of the GREF h as to take recourse to the Armed Forces Tribunal Act, 2007. For instance, Armed Forces Tribunal has, by virtue of Section 15 of the Armed Forces Tribunal Act, 2007, appellate jurisdiction against any order, decision, finding or sentence, w hich may be passed by a Court Martial. 29. Situated thus, it becomes abundantly clear that not only a member of the Armed Forces, but even a member of the GREF, who is tried by a Court Martial, h as the right to prefer appeal by taking recourse to Section 15 of the Armed Forc es Tribunal Act, 2007. However, all the provisions of the Army Act, 1950, havi ng not been made applicable to the members of the GREF, neither all punishments, as embodied under Section 71 of the Army Act, 1950, can be imposed on a member of the GREF, nor can he, in all eventualities, invoke Section 15 of the Armed Fo rces Tribunal Act, 2007. In this regard, it is noteworthy that by virtue of SRO 329, dated 03.09.1960, issued by the Government of India, in exercise of its po wer conferred by sub-Section (1) of Section 4 of the Army Act, 1950, the provisi ons of the Army Act and the Rules, framed thereunder, have been applied to the m embers of the GREF. While so applying the provisions of the Army Act, 1950, to the members of the GREF, the application of the provisions of the Army Act and t he Rules, framed thereunder, has been kept minimal for the purpose of maintainin g discipline. Thus, while the provisions of Section 21 of the Army Act, 1950, h as been made applicable to the members of the GREF, the provisions of Section 71 of the Army Act, 1950, have not been made applicable in toto inasmuch as the pr ovisions, embodied in clauses (d), (e), (f), (g) and (k) of Section 71, which pr escribes the penalties of cashiering, dismissal from the service, reduction in r ank, forfeiture of seniority of rank and forfeiture of all arrears of pay and al lowances, respectively, have not been made applicable. As a corollary thereto, the provisions of the Central Civil Services (Control, Classification and Appeal s) Rules, 1965, would be applicable to those matters, which have been left exemp ted by the Government of India’s Notification aforementioned. Obviously, theref ore, the GREF personnel, if aggrieved by the imposition of any of the penalties prescribed by clauses (a), (b), (c), (h), (i), (j) and (l) of Section 71 of the Army Act, 1950, would have the right to prefer appeal under Section 50 of the Ar med Forces Tribunal Act, 2007. For remaining service related matters, a member of the GREF would be covered by the provisions of the Central Civil Services (Co ntrol, Classification and Appeals) Rules, 1965, of course, all the provisions of the Constitution of India. 30. The above inference, that a member of the GREF can be dealt with by taki ng recourse to the Central Civil Services (Control, Classification and Appeals) Rules, 1965, when he is tried by a court-martial and has not been imposed punish ment(s), which SRO 329, dated 23.09.1960, exempts, gets strengthened from the de cision, in Union of India and Ors. vs. Sunil Kumar Sarkar, reported in (2001) 3 SCC 414, wherein a General Court-Martial was initiated against a GREF personal a nd, on conclusion of his trial, he, having been found guilty of some of the char ges framed against him, was sentenced to undergo rigorous imprisonment for one y ear, which was, later on, reduced to six months. Because of the exemption of cl ause (e) of Section 71 of the Army Act, 1950, which, otherwise, provides for dis missal from service, the respondent, Sunil Kumar Sarkar, could not be dismissed despite being sentenced to undergo rigorous imprisonment for six months. Howeve r, as the conviction of the respondent, Sunil Kumar Sarkar, could not have autom atically resulted into his dismissal from service, a proceeding under Rule 19 of the Central Civil Services (Control, Classification and Appeals) Rules, 1965, w as initiated and this proceeding came to be challenged by the respondent. The S upreme Court, in Sunil Kumar Sarkar (supra) took the view that conviction and pu nishment of imprisonment by General Court Martial, under the Army Act, 1950, and punishment of dismissal by disciplinary authority, under the Central Civil Serv ices (Control, Classification and Appeals) Rules, 1965, would not amount to doub le jeopardy, because, a disciplinary procedure, as contemplated by Article 311(2 )(a) of the Constitution, is a summary procedure provided to take disciplinary a ction against a government servant, who is already convicted in a criminal proce eding, and Rule 19 of the Central Civil Services (Control, Classification and Ap peals) Rules, 1965, is in conformity with the above provisions of the Constituti on. The Supreme Court further held, in Sunil Kumar Sarkar (supra), that the two proceedings aforementioned operate in two different fields though the crime or t he misconduct might arise out of the same act. The Court Martial proceedings dea l with the penal aspect of the misconduct, but the proceedings under the Central Civil Services (Control, Classification and Appeals) Rules, 1965, deal with the disciplinary aspect of the misconduct. The two proceedings do not overlap. The relevant observations, made by the Supreme Court, in Sunil Kumar Sarkar (supra) , read as under: (cid:28)8. The Division Bench also found fault with the order of dismissal pass ed by the disciplinary authority on the ground that the same was solely based on the conviction suffered by the respondent in the court-martial proceedings. The Court in this regard held that the disciplinary authority had a predetermined m ind when he passed the order of dismissal. Here again, in our opinion, the Divis ion Bench did not take into consideration Rule 19 of the Central Rules which con templates that if any penalty is imposed on a government servant on his convicti on in a criminal charge, the disciplinary authority can make such order as it de ems fit (dismissal from service is one such order contemplated under Rule 19) on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Co nstitution itself as could be seen in Article 311(2) (a). Rule 19 of the Central Rules is in conformity with the above provisions of the Constitution. This, as we see, is a summary procedure provided to take disciplinary action against a go vernment servant who is already convicted in a criminal proceeding. The very fou ndation of imposing punishment under Rule 19 is that there should be a prior con viction on a criminal charge. Therefore, the question of having a predetermined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been conv icted of a criminal charge and has been given a show-cause notice and reply to s uch show-cause notice, if any, should be properly considered before making any o rder under this Rule. Of course, it will have to bear in mind the gravity of the conviction suffered by the government servant in the criminal proceedings befor e passing any order under Rule 19 to maintain the proportionality of punishment. In the instant case, the disciplinary authority has followed the procedure laid down in Rule 19, hence, we cannot agree with the Division Bench that the said d isciplinary authority had any predetermined mind when it passed the order of dis missal. *** *** 11. Before concluding we must point out that during the course of arguments, a d oubt was raised as to the maintainability of the concurrent proceedings initiate d against the respondent by the authorities. The respondent in this case has bee n punished for the same misconduct both under the Army Act as also under the Cen tral Rules. Hence, a question arises whether this would tantamount to (cid:28)double je opardy (cid:29) and is in violation of Article 20 of the Constitution of India. Having c onsidered the arguments addressed in this behalf, we are of the opinion that so far as the concurrent proceedings initiated by the Organisation against the resp ondent both under the Army Act and the Central Rules are concerned, they are une xceptionable. These two proceedings operate in two different fields though the c rime or the misconduct might arise out of the same act. The court-martial procee dings deal with the penal aspect of the misconduct while the proceedings under t he Central Rules deal with the disciplinary aspect of the misconduct. The two pr oceedings 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 Sec tion 4 of the Army Act makes this position clear. By this notification, the puni shments that could be meted out under the Central Rules have been taken out of t he 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. Unio n of India. (cid:29) *** *** *** *** *** *** s added) Consequently, in the past, a member of the GREF, when tried by a Court M 31. artial, could have, ordinarily, invoked, against the order, decision or finding, the High Court’s jurisdiction under Article 226; but such recourse cannot, in t he light of R. Viswan’s case (supra), be had, now, in respect of matters, which are covered by the Armed Forces Tribunal Act, 2007. However, as persons, subjec t to the Army Act, they would not fall under the Armed Forces Tribunal Act, 2007 , in respect of those matters, which are covered by the Central Civil Services ( Control, Classification and Appeals) Rules, 1965, inasmuch as in respect of thos e matters, which are covered by Central Civil Services (Control, Classification and Appeals) Rules, 1965, a member of the GREF would not be able to take recours e to the Armed Forces Tribunal Act, 2007, because Armed Forces Tribunal Act, 200 (Emphasi 7, would not, in the light of the provisions of the Armed Forces Tribunal Act, 2 007, have jurisdiction to deal with the matters, which are covered by the Centra l Civil Services (Control, Classification and Appeals) Rules, 1965, and, hence, in such cases, his remedy would lie, in an appropriate case, in taking recourse to Article 226 of the Constitution of India inasmuch as jurisdiction of the Arme d Forces Tribunal Act, 2007, does not oust, and could not have ousted, in the li ght of the decision, in L. Chandra Kumar (supra), the High Court’s jurisdiction, under Article 226, by virtue of Section 14 of the Armed Forces Tribunal Act, 20 07. 32. What surfaces from the above discussion is that the present respondent, as a member of the GREF and a member of the Armed Forces, cannot, in the light o f the decision, in R. Viswan (supra) read with the decision, in Vidyawati’s case (supra), and could not have taken recourse to the provisions of the Administrat ive Tribunals Act, 1985. Consequently, the learned Central Administrative Tribu nal has/had no jurisdiction in the matter of the petitioner’s (i.e., the present respondent’s) grievance as regards refusal to grant him financial upgradation a nd, at the same time, the respondent’s grievance shows that even the Armed Force s Tribunal cannot redress, and could not have redressed, his grievance as regard s refusal to grant him financial upgradation. The remedy of the respondent, the refore, lies in making appropriate application in the High Court, under Article 226 of the Constitution of India, or in instituting appropriate suit for remedy of his grievances. 33. In the result and for the reasons discussed above, this writ petition su cceeds and the impugned order, dated 18.06.2012, passed by the learned Tribunal is hereby set aside and quashed. 34. of the assistance provided to us by Mr. U.K. Nair, learned Amicus Curiae. 35. nd disposed of. 36. With the above observations and directions, this writ petition shall sta Before parting with this writ petition, we record our deep appreciation No order as to costs.