Holding

The 96‑hour interval provision in Rule 34 of the Army Rules, 1954 is mandatory, and its non‑observance vitiates the court‑martial proceedings.

Summary

The case concerned A.K. Pandey, an army officer charged with selling a weapon, who was informed of the charges on 2 November 1995 and tried by a General Court Martial on 6 November 1995, but the trial began at 10:10 a.m., less than the 96‑hour interval mandated by Rule 34 of the Army Rules, 1954. Pandey pleaded guilty, yet he challenged the proceedings under Section 164(2) of the Army Act, 1950. The Supreme Court examined whether the 96‑hour requirement is a mandatory or merely directory provision and whether its breach invalidates the trial. Relying on principles of statutory interpretation, the Court held that prohibitive language such as “shall not be less than ninety‑six hours” makes the provision absolute and mandatory, intended to give the accused adequate time to prepare a defence. The breach of this mandatory rule vitiates the entire court‑martial proceeding, irrespective of a guilty plea. Consequently, the order setting aside the General Court Martial was affirmed.

Issues considered

Whether the provision in Rule 34 of the Army Rules, 1954 requiring a minimum interval of ninety‑six hours between service of charge and arraignment is mandatory or directory.
Whether a breach of this provision invalidates the General Court Martial proceedings even when the accused pleads guilty.

Legislation cited

Army Act, 1950s. Section 164(2)
Army Rules, 1954s. Rule 34

Subjects

Army Rulesmandatory provisionstatutory interpretationcourt martialprocedural fairness96‑hour rulenegative wordsmandatory vs directorynatural justice

Judgment

~
[2009) 14 (ADDL.} S.C.R. 528 ·

A UNION OF INDIA & ORS.
v.
AK. PANDEY
(Civil Appeal No. 6181 of 2002)

SEPTEMBER 16, 2009
B .·,
[B.N. AGRAWAL, AFTAB ALAM AND R.M. LODHA, JJ.] ·

i >.
Army Rules, 1954 - Ri.Jle ·34 -·Provision regarding
~
interval of ninety-six hours from the service of the charge for
c which accused is to be tried and his arraignment - Na.ture of
- Held: Is absolute and mandatory - Time frame has definite
purp·ose and object - It must be strictly observed - Non-
.
: '

observance would vitiate the entire proceedings - On facts,
time interval of ninety-six hours as provided in Rule 34 not .
D complied with - Accused having pleaded guilty of charges; +
is immaterial - Thus, order of courts below quashing and
setting aside the General Court Martial proceedings, upheld.

Interpretation of statutes - Nature of statute .-
Determination of - Held: Prohibitive or negative words are
E
ordinarily indicative of the mandatory nature of provision,
though not conclusive - Court has to examine carefully -¥
purpose of such provision and consequences that may follow
from its non-observance.
F The question which arose for consideration ih this
appeal is whether the provision in Rule 34 of the Army
Rules, 1954 that the interval between the accused being
informed of charge for which he is to be tried and his
arraignment shall not be less than ninety-six hours, is
G mandatory or directory. J.

Dismis;;ing the appeal, the Court

HELD: 1.1. The prohibitive or negative words are
52P
H
UNION OF INDIA & ORS. v. A.K. PANDEY 529

~
ordinarily indicative of mandatory nature of the provision, A
although not conclusive. The Court has to examine
carefully the purpose of such provision and the
consequences that may follow from non-observance
thereof. If the context does not show nor demands
otherwise, the text of a statutory provision couched in a B
negative form ordinarily has to be read in the form of
command. When the word "shall" is followed by
~ prohibitive or negative words, the legislative intention of
making the provision absolute, peremptory and
imperative becomes, loud and clear and ordinarily has to c
be inferred as such. [Para 22] [541-F-H; 542-A]

1.2. The key words used in Rule 34 of the Army
Rules, 1954 from which the intendment is to be found are
~ "shall not be less than ninety-six hours". There being
nothing in the context otherwise, there has to be clear D
ninety six hours interval between the accused being
charged for which he is to be tried and his arraignment
and interval time in Rule 34 must be read absolute. There
is a purpose behind this provision: that before the
accused is called upon for trial, he must be given E
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 F
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 G
follow from non-observance of the· time interval provided
in Rule 34 being grave and severe, said provision is
absolute and mandatory. If the interval period provided
in Rule 34 is held to be directory and its strict observance
H
530 SUPREME COURT REPORTS [2009) 14 (ADDL.} S.C.R.

A is not insisted upon, in a given case, an accused may be
called upon for trial befor~ 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
B must be strictly observed. Its non-observance vitiates the
entire proceedings. [Paras 13 and 22] [534-E; 542-A-F]

1.3. The respondent was informed of the charges for _..
which he was to be tried by General Court Martial on
C ~ovember 2, 1995 at 1800 hours. Although the
respondent was informed that he would be tried by
General Court Martial on November 6, 1995 at 1130 hours
but the proceedings of the General Court Martial clearly
shows that the trial commenced at 1010 hours. The
interval between the respondent having been informed ~
D of the charges for which he was to be tried and his
arraignment was less than ninety-six hours is an admitted
position. Merely because the respondent pleaded guilty
is immaterial. The mandatory provision contained in Rule
34 having been breached, the Division Bench of High
E Court cannot be said to have erred in upholding the order
of the Single Judge of High Court setting aside the _,,
proceedings of the General Court Martial. [Para 25] [546-
F-H; 547-A]

F State Bank of Patiala and Others v S.K. Sharma (1996)
3 . SCC 364; M.Pentiah and Others vs. Muddala
Veeramallappa and Others AIR 1961 SC 1107; Lachmi
Narain and Others vs. Union of India and Others (1976) 2
SCC 953; Manna/al Khetan and Others vs. Kedar Nath
G Khetan and Others (1977) 2 SCC 424, referred to.

Thomson vs. Stimpson (1960) 3 All E.R. 500, Referred
to.

Principles of Statutory Interpretation by Justice GP.Singh
H (seventh edition); Crawford's Statutory Construction (1989
- UNION OF INDIA & ORS. v. A.K. PANDEY 531

reprint), referred to. A
~

Case Law Reference:
(1996) 3 sec 364 Referred to Para 11,
23,24
B
(1960) 3 All E.R. 500 Referred to Para18
AIR 1961 SC 1107 Referred to Para 19
(1976) 2 sec 953 Referred to Para 20
(1977) 2 sec 424 Referred to Para 21 c
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6181 of 2002.

From the Judgment & Order dated 11.4.2001 of the High
-.+ Court of Judicature for Rajasthan at Jodhpur in D.B. Civil D
Special Appeal No. 9/2000.

Mohan Jain, ASG, Naresh Kaushik, Dinesh Thakur, Sunita
Rani Singh, Anil Katiyar, S.N. Terdal and B.V. Balaram Das for
the Appellants. E

P.K. Bajaj and S.K. Sabharwal for the Respondent.

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. The question which falls to be F
determined in this appeal by special leave is : is the provision
in Rule 34. of the Army Rules, 1954 that the interval between
the accused being informed of charge for which he is to be tried
and his arraignment shall not be less than ninety-six hours
mandatory? G

2. Mr. AK. Pandey-- respondent -was enrolled in Army
on September 18, 1987. Subsequently, he was posted to 12
Corps Signal Regiment (AREN) unit on August 21, 1994 at
Jodhpur. The respondent remained on casual leave for thirteen H
....,,
532 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A days from September 5, 1995 to September 17, 1995. When ).._
he resumed his duty on September 23, 1995 he brought with
him one country made pistol and one round of small ammunition
to the unit which he sold to signalman J.N. Narasimlu of the
same unit. J.N. Narasimlu while leaving the unit was caught by
B the regimental police carrying the above weapon and one round
of small ammunition in one bag. On being questioned, J.N.
Narasimlu told that he had purchased the weapon and one
round of small ammunition from the respondent. The respondent
,\.
and J.N. Narasimlu were placed in closed arrest with effect from
c Septergber 23, 1995. Summary of evidence against both the
persons is said to have been recorded by Major Sudhir Handa
of 12 Corps Signal Regiment.

3. The respondent was charged vide charge-sheet dated
October 26, 1995 which was served· upon him on November
D 2, 1995 at 1800 hours. He was informed that he would be tried
+
by General Court Martial on November 6, 1995 at 1130 hrs.

4. On November 6, 1995, General Court Martial
commenced its proceedings at 1010 hours wherein the
E 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)
"f
dismissal from service.
5. The respondent aggrieved·thereby submitted a petition
F 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
G 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 pray.ing therein for issuance
of appropriate writ, order or direction to quash the General
H
UNION OF INDIA & ORS. v. A.K. PANDEY 533
[R.M. LODHA, J.]

_.. Court Martial proceedings dated November 6, 1995 and the A
punishments awarded to him and to reinstate him in service with
effect from November 6, 1995 with all consequential benefits.

8. The present appellant~ contested the writ petition by
filing a counter in opposition before the High Court. B
9. The Learned Single Judge allowed the writ petition on
December 3, 1999 and quashed and set aside General Court
,. Martial proceedings held on November 6, 1995 as well as the
order of punishment.
c
10. The present appellants preferred intra court appeal
which. was found. devoid of any merit and came to be dismissed
on April 11, 2001. Hence, the present appeal by special leave.
11. Mr. Mohan Jain, Learned Additional Solicitor General
D
~ strenuously urged that the interval of ninety-six hours provided
in Rule 34 is directory and, in any case, the respondent having
pleaded guilty of both the charges, no prejudice can be said
to have been caused to him by non-compliance of the time
provided therein. In support of his submissions, he he_avily relied
upon a decision of this Court in the case of State Bank of E
Patiala and Others v. S.K Shanna 1•
'f-
12. Rule 34 of the Army Rul.es, 1954 with which we are
concerned reads as follows :
F
"34. Warning of accused for trial. -( 1) The accus.ed
before he is arraigned shall be informed by an officer of
every charge for which he is to lre tried and also that, on
his giving the names of witnesses or whom he desired to
call in his defence, reasonable steps will be taken for
procuring their attendance, and those steps shall be taken G
>-
accordingly.

The interval between his being so informed and his

1. (1996) 3 sec 364 H
534 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A arraignment shall not be less than ninety-six hours or where
the accused person is on active service less than twenty-
four hours.

(2) The officer at the time of so informing the
B accused shall give him a copy of the charge-sheet and
shall if necessary, read and explain to him the charges
brought against him. If the accused desires to have it in a
language which he understands, a translation thereof shall
also be given to him.
c (3) .The officer shall also deliver to the accused a list
of the names, rank and corps (if any), of the officers who
are to form the court, and where officers in waiting are
named, also of those officers in courts-martial other than
summary courts-martial. .
D
(4) If it appears to the court that the accused is liable
to be prejudiced at his trial by any non-compliance with this
rule, the court shall take steps and, if necessary, adjourn
to avoid the accused being so prejudiced."
E -
13. The key words used in Rule 34 from which the
intendment is to be found are "shall not be less than ninety-six
hours". 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
F 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.
G Turner 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
H 2. 1861 30 LJ Ch 379.
UNION OF INDIA & ORS. v. A.K. PANDEY 535
[R.M. LODHA, J.]

~ whole scope of the statute to be considered." A

15. In Crawford's Statutory Construction (1989 reprint), the
following excerpt from People v. Sutcliffe3 is quoted :

"It is a rule of statutory construction that where a statute is
B
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. In his discussion on the subject, "Mandatory and c
Directory or Permissive Words" Crawford in the afore-noticed
treatise says:

"Ordinarily the words "shall" and "must" are mandatory, and
the work "may" is directory, although they are often used
,.. D
4 inter-changeably in legislation. This use without regard to
their literal meaning generally makes it necessary for the
courts to resort to construction in order to discover the real
intention of the legislature. Nevertheless, it will always be
presumed by the court that the legislature intended to use
the words in their usual and natural meaning. If such a E

.. ' meaning, however, leads to absurdity, or great
inconvenience, or for some other reason is clearly contrary
to the obvious intention of the legislature, then words which
ordinarily are mandatory in their nature will be construed
as-directory, or vice versa. In other words, if the language F
of the statute, considered as a whole and with due regard
to its nature and object, reveals that the legislature intended
the words "shall" and "must" to be directory, they should
be given that meaning. Similarly, under the same
circumstances, the word "may" should be given a G
mandatory meaning, and especially where the statute
concerns the rights and interests of the public, or where
third persons have a claim de jure that a power shall be

3. 7 N.Y.S. (2) 431. H

r
536 SUPREME COURT REPORTS [2009] 14 (ADDL) S.C.R.

A exercised, or whenever something is directed to be done
/>...
for the sake of justice or the public good, or is necessary
to sustain the statute's constitutionality.

Yet the construction of mandatory words as directory
and directory words as mandatory should not be lightly
B
adopted. The opposite meaning should be unequivocally
evidenced before it is accepted as the true meaning;
otherwise, there is considerable danger that the legislative
intent will be wholly or partially defeated."

c 17. Crawford further says in his treatise that prohibitive or
negative words can rarely, if ever, be directory ..............
Negative, prohibitory and exclusive words or terms are
indicative of the legislative intent that the statute is to be
mandatory.
D
18. In Thomson vs. Stimpson4, Lord Parker C.J. (Queen's "~ 'I

Bench Division) while dealing with the wording of Section 16
of the Rent Act, 1957 which provided that r.o notice by a
landlord or a tenant to quit any premises let (whether before or
after the commencemen1. of the Act) as a dwelling shall be valid
E
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
'f
weeks. This is what Lord Parker, C.J. observed :

F ..................... 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
G 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 Others5 construed the
4. {1960) 3 All E.R. 500.

H 5. (1976) 2 sec 953. "'
UNION OF INDIA & ORS. v. A.K. PANDEY 537
[R.M. LODHA, J.]

..
_
expression, "not less than two-third of the whole number of A
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
B
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 have power to transfer any immovable property, if the
conditions laid down under the section are complied with."
c
20. In Lachmi Narain and Others v. Union oflndia and
Others6 , this Court construed the expression, "not less than
·three months' notice" in Section 6(2) of Delhi Laws Act and
held:
- .. "68. Section 6(2), as it stood immediately before the
D

impugned notification, requires the State Government to
give by notification in the Official Gazette "not less than 3
months' notice" of its intention to add to or omit from or
otherwise amend the Second Schedule. The primary key
E
to the problem whether a statutory provision is mandatory
or directory, is the intention of the law-maker as expressed
l in the law, itself. The reason behind the provision may be
a further aid to the ascertainment of that intention. If the
legislative intent is expressed clearly and strongly in
imperative words, such as the use of "must" instead of
,F
"shall", that will itself be sufficient to hold the provision to
be mandatory, and it will not be necessary to pursue the
enquiry further. If the provision is couched in prohibitive or
negative language, it can rarely be directory, the use of
peremptory language in a negative form is per se 'G
indicative of the intent that the provision is to be mandatory.
(Crawford, The Construction of Statutes, pp. 523-24). Here
the language of sub-section (2) of Section 6 is
emphatically prohibitive, it commands the Government in
6 . (1976) 2 sec 953. H

.
538 SUPREME COURT REPORTS (2009] 14 (ADDL.) S.C.R.

A unambiguous negative terms that the period of the
requisite notice must not be less than three months.

69. In fixing this period of notice in mandatory terms, the
legislature had, it seems taken into consideration several
B factors. According to the_ scheme of the Bengal Act, the
tax is quantified and assessed on the quarterly turnover.
The period of not less than three months' notice conforms
to that scheme and is intended to ensure that imposition
of a new burden or exemption from tax causes least
dislocation and inconvenience to the dealer in collecting
c the tax for the Government, keeping accounts and filing a
proper return, and to the Revenue in assessing and
collecting the same. Another object of this provision is that
the public at large and the purchasers on whom the
incidence of the tax really falls, should have adequate
·o notice of taxable items. The third object seems to be that _._ -·
the dealers 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 re~;:c:t of the intended amendment. The
E 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
'f
accord with the new imposition or exemption. •

F 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
G
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." ~

H

,
UNION OF INDIA & ORS. v. A.K. PANDEY 539
[RM. LODHA, J.]
,4
21. In Manna/al Khetan and Others v. Kedar Nath Khetan A
, and Others7 while dealing with Section 108 of the Companies
Act, 1956 a three Judge Bench of this Court held :

"17. In Raza Buland Sugar Co. Ltd. v. Municipal Board,
Rampur[(1965) 1 SCR 970] this Court referred to various
B
tests for finding out when a provision is mandatory or
directory. The purpose for which the provision has been
,A made, its nature, the intention of the legislature in making
the provision, the general inconvenience or injustice which
may result to the person from reading the provision one
way or the other, the relation of the particular provision to
c
other provisions dealing with the same subject and the
language of the provision are all to be considered.
Prohibition and negative words can rarely be directory. It
., . has been aptly stated that there is one way to obey the
command and that is completely to refrain from doing the D
forbidden act. Therefore, negative, prohibitory and
exclusive words are indicative of the legislative intent when
the statute is mandatory. (See Maxwell on Interpretation
of Statutes, 11th Edn., p. 362 seq.; Crawford: Statutory
Construction, Interpretation of Laws, p. 523 and Seth E
)
Bikhraj Jaipuria v. Union of India [(1962) 2 SCR 880, 893-
894].

18. The High Court said that the provisions contained in
Section 108 of the Act are directory because non- F
compliance with Section 108 of the Act is not declared an
offence. The reason given by the High Court is that when
the law does not prescribe the consequences or does not
lay down penalty for non-compliance with the provision
)' contained in Section 108 of the Act the provision is to be
G
considered as directory. The High Court failed to consider
the provision contained in Section 629(A) of the Act.
Section 629(A) of the Act prescribes the penalty where no
specific penalty is provided elsewhere in the Act. It is a

7. (1977) 2 sec 424. H
,,,..
540 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A question of construction in each case whether the
legislature intended to prohibit the doing of the act
·-
I
altogether, or merely to make the person who did it liable
to pay the penalty.

19. Where a contract, express or implied, is expressly or
B
by implication forbidden by statute, no court will lend its
assistance to give it effect. (See Mellis v. Shirley L.B.
[(1885) 16 QBD 446)] A contract is void if prohibited by a A
statute under a penalty, even without express declaration
that the contract is void, because such a penalty implies .
c a prohibition. The penalty may be imposed with intent
merely to deter persons from entering into the contract or
for the purposes of revenue or that the contract shall not

D
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
E act, that contract will be unenforceable. In. the latter class,
one has to consider notwhat 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
F 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 cont;act.which involves in
its fulfilment the doing of an act prohibited by statute is void.
G The legal maxim A pactis privatorum publico juri non
i

derogatur means that private agreements cannot alter the
general law. Where a contract, express or implied, is
expressly or by implication forbidden by statute, no court
can lend its assistance to give it effect. (See Mellis v.
H
UNION OF ·INDIA & ORS. v. A.K. PANDEY 541
[RM. LODHA, J.]
}
Shirley L.B.) What is done in contravention of the A
provisions of an Act of the legislature cannot be made the
subject of an action.

21. If anything is against law though it is not prohibited in
the statute but only a penalty is annexed the agreement is B
void. In every case where ·a statute inflicts a penalty for
doing an act, though the act be not prohibited, yet the thing
is unlawful, because it is not intended that a statute would
inflict a penalty for a lawful act.

22. Penalties are imposed by statute for two distinct c
purposes:

(1) for the protection of the public against fraud, or for some
other object of public policy; (2) for the purpose of securing
certain sources of revenue either to the State or to certain D
public. bodies. If it is clear that a penalty is imposed by
statute for the purpose of preventing something from being
done on some ground of public policy, the thing prohibited,
· if done, will be treated as void, even though the penalty if
imposed is not enforceable.
E
23. The provisions contained in Section 108 of the Act are
~
for the reasons indicated earlier mandafory. The High Court
erred in holding that the provisions are directory."

22. The principle seems to be fairly well settled that F
prohibitive or negative words are ordinarily indicative of
mandatory nature of the provision; although not conclusive. The
Court has to examine carefully the purpose of such provision
and the consequences that may follow from non-observance
~
thereof. If the context does not show nor demands otherwise, G
the text of a statutory provision couched in a negative form
ordinarily has to be read in the form of command. When the
word "shall" is followed by prohibitive or negative words, the
legislative intention of making the provision absolute,
peremptory and imperative becomes loud and clear and
H
542 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R. ~
i

~

A ordinarily has to be inferred as such. There being nothing in the
context otherwise, in our judgment, there has to be clear ninety-
"
six hours interval between the accused being charged for which
he is to be tried and his arraignment and interval time in Rule
34 must be read absolute. There is a purpose behind this
B provision: that purpose is that before the accused is called upon
for 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 A
reasonable steps in procuring the attendance· of his witnesses.
c 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
D
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
E 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
r
proceedings.
F
23. The Learned Additional Solicitor General heavily relied "
upon a· decision of this Court in State Bank of Patiala wherein
this Court summarised the legal position relating to disciplinary
proceedings and orders of punishment thus :
G ~ ~
"33. We may summarise the principles emerging from the
above discussion. (These are by no means intended to be
exhaustive and are evolved keeping in view the context of
disdplinary enquiries and orders of punishment imposed
by an employer upon the employee):
H
UNION OF INDIA & ORS. v. A.K. PANDEY 543
[R.M. LODHA, J.]
;. (1) An order passed imposing a punishment on an A
' employee consequent upon a disciplinary/
!
departmental enquiry in violation of the rules/
regulations/statutory provisions governing such
enquiries should not be set aside automatically. The
Court or the Tribunal should enquire whether (a) the B
provision violated is of a substantive nature or (b)
whether it is procedural in character.
).
(2) A substantive provision has normally to be
complied with as explained hereinbefore and the
c
- theory of substantial compli~nce or the test of
prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision,
the position is this: procedural provisions are
generally meant for affording a reasonable and D
adequate opportunity to the delinquent officer/
employee. They are, generally speaking, conceived
in his interest. Violation of any and every procedural
provision cannot be said to automatically vitiate the
enquiry held or order passed. Except cases falling E'
under - "no notice", "no opportunity" and "no
); hearing" categories, the complaint of violation of
procedural provision should be examined from the
point of view of prejudice, viz., whether such
violation has prejudiced the delinquent officer/ F
employee in defending. himself properly and
effectively. If it is found that he has been so
prejudiced, appropriate orders have to be made to
repair and remedy the prejudice including setting
aside the enquiry and/or the order of punishment.
G
t If no prejudice is established to have resulted
therefrom, it is obvious, no interference is called for.
In this connection, it may be remembered that there
may be certain procedural provisions which are of
a fundamental character, whose violation is by itself
H
f"

544 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
..'
A proof of prejudice. The Court may not insist on proof
of prejudice in such cases. As explained in the "'
body of the judgment, take a case where there is a
provision expressly providing that after the evidence
of the employer/government is over, the employee
B 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
c 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
D
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
E - 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 v:olation has '
F occasioned prejudice to the delinquent employee. \
(b) In the case of violation of a procedural provision,
which is of a mandatory character, it has to be
ascertained whether the provision is conceived in
the interest of the person proceeded against or in
G
public interest. If it is found to be the former, then it
~
must be seen whether the delinquent officer has
waived.the said requirement, either expressly or by
his conduct. If he is found to have waived it, then
the order of punishment cannot be set aside on the
H
UNION OF INDIA & ORS. v. A.K. PANDEY 545
[R.M. LODHA, J.]
:I ground of the said violation. If, on the other hand, it A
is found that the delinquent officer/employee has not
waived it or that the provision could not be waived
by him, then the Court or Tribunal should make
appropriate directions (include the setting aside of
the order of punishment), keeping in mind the B
approach adopted by the Constitution Bench in B.
Karunakar ((1993) 4 SCC 727]. The ultimate test
is always the same, viz., test of prejudice or the test
of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/
c
regulations/ statutory provisions ::nd the only
obligation is to observe the principles of natural
justice - or, for that matter, wherever such
principles are held to be implied by the very nature
and impact of the order/action - the Court or the D
Tribunal should make a distinction between a total
violation of natural justice (rule of audi alteram
partem) and violation of a facet of the said rule, as
explained in the body of the judgment. In other
words, a distinction must be made between "no E
opportunity" and no adequate opportunity, i.e.,
between "no notice"/"no hearing" and "no fair
hearing". (a) In the case of former, the order passed
would undoubtedly be invalid (one may call it 'void'
or a nullity if one chooses to). In such cases, F
normally, liberty will be reserved for the Authority to
take proceedings afresh according to law, i.e., in
accordance with the said rule (audi alteram
partem). (b) But in the latter case, the effect of
violation (of a facet of the rule of audi alteram G
1
partem) has to be examined from the standpoint of
prejudice; in other words, what the Court or Tribunal
has to see is whether in the totality of the
circumstances. the delinquent officer/employee did
or did not h3\/e a fair hearing and the orders to be H
546 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A made shall depend upon the answer to the said.
query. [It is made clear that this principle (No. 5) A

does not apply in the case of rule against bias, the
test in wllich behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem
B
(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
c 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
D the rule of audi alteram partem. In such situations,. t
the Court may have to balance public/State interest
with the requirement of natural justice and arrive at
an appropriate decision. n

E 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 t9 be tried and his arraignment is mandatory. This
F situation would be covered by sub-para 4(b) of para 33 as
aforequoted.

25. That the respon~ent was informed of the charges for
which he was to be tried by General Court Martial on Nov~mber
2, 1995 at 1800 hours is not in dispute. Although the respondent
G was informed that he would be tried by General Court Martial
on November 6, 1995 at 1130 hour8 but the proceedings of
the General Court Martial clearly show that the trial commenced
at 1010 hours. That interval between the respondent having
been informed of the charges for which he was to be tried and
H his arraignment was less than ninety-six hours is an admitted
UNION OF INDIA & ANR. v. MURALIDHARA MENON & 547
ANR. [S.B. SINHA, J.]

j position. Merely because the' respondent pleaded guilty is A
immaterial. The mandatory provision contained in Rule 34
having been breached, the Division Bench cannot be said to
have erred in affirming the order of the Single Judge setting
aside the proceedings of the General Court Martial.
8
26. In the result, the appeal must fail and is dismissed with
no order as to costs.
~ N.J . Appeal dismissed.

...