TMI Blog2009 (9) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... r trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the timeframe provided in Rule 34 has definite purpose and object and must be strictly observed. Its non- observance vitiates the entire proceedings. The key words us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its proceedings at 1010 hours wherein the respondent is said to have pleaded guilty of both the charges. Based on that, the respondent was awarded punishments; (i) to suffer rigorous imprisonment for three years and (ii) dismissal from service. 5. The respondent aggrieved thereby submitted a petition under Section 164(2) of the Army Act, 1950 before the Chief of the Army staff for setting aside the findings and sentence of the General Court Martial held on November 6, 1995. 6. The Chief of Army Staff rejected the petition submitted by the respondent on December 23, 1996 and the respondent was informed of the said decision on December 31, 1996. 7. The respondent then approached the High Court of Judicature for Rajasthan at Jodhpur praying therein for issuance of appropriate writ, order or direction to quash the General Court Martial proceedings dated November 6, 1995 and the punishments awarded to him and to reinstate him in service with effect from November 6, 1995 with all consequential benefits. 8. The present appellants contested the writ petition by filing a counter in opposition before the High Court. 9. The Learned Single Judge allowed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As the respondent was not in active service at the relevant time, we are not concerned with the later part of that rule which provides for interval of twenty-four hours for the accused in active service. 14. In his classic work, Principles of Statutory Interpretation (seventh edition), Justice G.P. Singh has quoted passage of Lord Campbell in Liverpool Borough Bank v. Turner (1861 30 LJ Ch 37) that read : no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory whether implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of Legislature by carefully attending to the whole scope of the statute to be considered. 15. In Crawford's Statutory Construction (1989 reprint), the following excerpt from People v. Sutcliffe 7 N.Y.S. (2) 431 is quoted : It is a rule of statutory construction that where a statute is framed in terms of command, and there is no indication from the nature or wording of the act or the surrounding circumstances that it is to receive a permissive interpretation, it will be construed as pre-emptory. 16. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g shall be valid unless it is given not less than four weeks before the date of which it is to take effect held that four weeks' notice contemplated in Section 16 should be construed as four clear weeks. This is what Lord Parker, C.J. observed : ..................Parliament here, however, has gone further and used the words which have been interpreted in the past as providing for four clear weeks. Like Bennett, J., in Re Hector Whaling, Ltd. (1935) All E.R.303, I think that there ought to be certainty on this matter, and I prefer the view that the word should be construed as four clear weeks. 19. A Constitution Bench of this Court in M. Pentiah and Others v. Muddala Veeramallappa and Others AIR 1961 SC 1107 construed the expression, not less than two-third of the whole number of members in Section 77 of Hyderabad District Municipalities Act, 1956 as follows : This section confers on the Committee an express power couched in a negative form. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative. If the section is recast in an affirmative form, it reads to the effect that the Committee shall h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and others likely to be affected by an amendment of the Second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment. The dealers have also been ensured adequate time to arrange their sales, adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption. 70. Taking into consideration all these matters, the legislature has, in its judgment solemnly incorporated in the statute, fixed the period of the requisite notice as not less than three months and willed this obligation to be absolute. The span of notice was thus the essence of the legislative mandate. The necessity of notice and the span of notice both are integral to the scheme of the provision. The sub-section cannot therefore be split up into essential and non-essential components, the whole of it being mandatory. The rule in Raza Buland Sugar Co.'s case (supra) has therefore no application. 21. In Mannalal Khetan and Others v. Kedar Nath Khetan and Others (1977) 2 SCC 424 while dealing with Section 108 of the Companies Act, 1956 a three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act, that contract will be unenforceable. In the latter class, one has to consider not what act the statute prohibits, but what contracts it prohibits. One is not concerned at all with the intent of the parties, if the parties enter into a prohibited contract, that contract is unenforceable. (See St. John Shipping Corporation v. Joseph Rank [(1957) 1 QB 267) (See also Halsbury's Laws of England, Third Edn., Vol. 8, p. 141.) 20. It is well established that a contract which involves in its fulfilment the doing of an act prohibited by statute is void. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements cannot alter the general law. Where a contract, express o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandatory. If the interval period provided in Rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before General Court Martial no sooner charge/charges for which he is to be tried are served. Surely, that is not the intention; the timeframe provided in Rule 34 has definite purpose and object and must be strictly observed. Its non- observance vitiates the entire proceedings. 23. The Learned Additional Solicitor General he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. 24. The judgment of this Court in State Bank of Patiala hardly helps the appellants. We have already held that the provision contained in Rule 34 regarding interval of ninety-six hours from the service of the charge/charges for which an accused is to be tried and his arraignment is mandatory. This situation would be covered by sub-para 4(b) of para 33 as aforequoted. 25. That the respondent was informed of the charges for which he was to be tried by General Court Martial on Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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