B.S. Chauhan, J.
1. This is an appeal under Section 18 of the Rajasthan High Court Ordinance against the judgment and order of the learned Single Judge dated 28.5.1997 passed in S.B. Civil Writ Petition No. 358/1991 by which the writ petition of the respondent-petitioner has been allowed with cost of Rs. ten thousand and quashing the order of dismissal from service and he has been allowed to be reinstated with full back wages.
2. The respondent-petitioner joined the Indian Army as a combatant Sepoy in the trade of cook on -21.2.83 and when he was on duty on 15.8.1990, some altercation took place and he became very furious and assaulted Naib Subedar Jaswant Singh by giving him a slap. Respondent-petitioner was arrested immediately after the incident and detained in military custody. A summary of evidence was recorded on 17.8.1990 and he was court martialled by summary court martial on 17.9.1990 awarding punishment of dismissal from service and six months' rigorous imprisonment. His representation/appeal etc. were dismissed. However, his writ petition has been allowed by the judgment and order dated 28.5.1997. Hence this appeal by the Union of India and others.
3. Heard Mr. P.P. Chaudhary learned Counsel for the appellants and Mr. S.K. Nanda for the respondent.
4. In the writ petition, basically two questions were raised. Main thrust of the argument had been on non-compliance of provisions contained in Rule 34 (1) and Rule 115 (2) of the Army Rules, 1956, hereinafter called 'the Rules.' It is not much in dispute that the said rules were not given strict adherence to, though the present appellants claim that the said rules had been substantially complied-with but it is urged that the said rules are directory and not mandatory.
Rule 34 reads as under:
34. Warning of accused for trial.--(1) The accused before he is arraigned shall be informed by an officer of every charge for which he is to be tried and also that, on his giving the name's of witnesses whom he desires to call in his defence, reasonable steps will be taken for procuring their attendance, and those steps shall be taken accordingly. The interval between his being so informed and his arraignment shall not be less than ninety-six hours or where the accused is on active service less than twenty-four hours.
(2) The officer at the time of so informing the accused shall give him copy of the chargesheet 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.
(3)...
(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.
5. It has been submitted by Mr. P.P. Chaudhary learned Counsel for the appellants that the cause of the respondents has not been prejudiced by non-compliance of Rule 34 (1) and as the said rule is not mandatory and, thus, it will not vitiate the court martial proceedings and the judgment of the learned Single Judge is liable to be set aside on this score alone. Undoubtedly, the language used therein particularly the term 'shall' suggests that the rule is mandatory. However, it may be urged that there is no hard and fast rule to give literal meaning in such a case and it may also be 'taken as may' depending upon the intention of the legislature and the context in which the piece of legislation has been passed.
6. The simple rule of interpretation requires to give literal meaning to the provisions of the Statute and nothing else unless the language of the statute itself is ambiguous and warrants a different interpretation thereof. In the case of Babua Ram and Ors. v. State of U.P. and Ors. (1995) 2 SCC 698, the Hon'ble Supreme Court has held as under:
Therefore, when the language is clear and capable of only one meaning, anything enacted by the Legislature, must be enforced, even though it be absurd or results in startling consequences. In other words, if the statute is plain, certain and free from ambiguity, a bare reading of it suffices and its interpretation can never arise.
7. Similarly, in the case of Smt. Sita Devi v. State of Bihar and Ors. 1995 Suppl. (1) SCC 670, it has been held by the Apex Court that when the language of the statute is unambiguous, specific and explicit, its provisions have to be interpreted only by giving literal meaning unless it suggests absurdity or irrationality.
8. In State of Haryana and Anr. v. Raghubir Dayal : (1995)1SCC133 , the Supreme Court has observed as under:
The use of the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word 'shall' prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word 'shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word 'shall' as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.
9. Thus before the term 'shall' is given the meaning as 'may', the court is required to give an exhaustive consideration on the subject and to determine whether the provisions of the statute are mandatory or directory.
10. In the case of Raza Buland Sugar Company Limited v. Municipal Board : [1965]1SCR970 , the Supreme Court has observed as under:
The question whether a particular provision of a statute was mandatory.. or directory cannot be resolved by laying down any general rule and it should depend upon the facts of each case and for that purpose the object of the statute in working out the provisions is a determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from the provisions.. or other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.
11. Therefore, while interpreting a provision of the statute, it should not be construed to render that provision almost meaningless or by not giving significant meaning to the words staling at the face providing for consequences of non-compliance. This provision has been considered by a Division Bench of the Allahabad High Court in Uma Shanker Pathak v. Union of India and Ors. 1989 (3) S.L.R. 405 which came to the conclusion that the provisions are mandatory and if the terms are not complied with, it would vitiate the trial itself. The court observed as under:
The language used in Rule 34 is peremptory. It states that 'the interval between his being so informed and his arraignment shall not be less than 96 hours' (emphasis added). Such an interpretation is also consistent with the principle of natural justice in that the purpose of the rule is to enable the accused to have sufficient notice so that he may prepare his defence. That being so, the breach of Rule 34 must vitiate the entire trial.
12. If the scheme of the statute is examined, it would suggest that the requirement of Rule 34 is to be complied-with, mandatorily. Rule 36 clearly provides that in case the requirement of Sub-rule (1) of Rule 34 cannot be complied-with for the reason of military exigencies or the necessities of discipline rendered it impossible or in expedient to observe, the senior officer on the spot may, by order under his hand, make a declaration to that effect specifying the nature of such exigencies or necessities. Even in that case, if the trial proceeds not strictly observing the provisions of Rule 34, the accused shall have full opportunity of making his defence and shall be afforded every facility for preparing it which is practicable having due regard to the said exigency or necessities. If we examine this issue in the totality of the circumstances and bearing in mind that the principles of natural justice are not applicable in case of the respondent nor he is entitled to protection under Article 311 of the Constitution and the statute provides to follow a particular procedure, then in such a case, unless there are exceptional circumstance, which may fall within the ambit of Rule 36, the provisions of Rule 34 have to be complied with strictly and no exception can be taken to it. This is the sum and substance of various judicial pronouncements by the Hon'ble Apex Court. (Som Dutt Datta v. Union of India : 1969CriLJ663 ; Babaji Kondaji Garad Nasik Merchants Cooperative Bank Ltd. and Ors. : [1984]1SCR767 ; and Union of India v. Amrit Singh : 1991CriLJ664 ).
13. The learned Single Judge has considered this aspect in great detail and came to the conclusion that the rules have statutory force and cannot be violated. Sub-rule (4) of the said rules imposes a legal obligation upon the officer concerned to find-out whether non-compliance of the provisions of Sub-rule (1) have caused any prejudice to the accused/delinquent employee, therefore, the burden lies on the appellants themselves to find- out whether non-compliance has caused any prejudice and in such a case, appellants cannot be permitted to urge that by not making the protest of non-compliance at the time of the trial, it would be deemed that the accused has waived the requirement of law. When statutory Rules provide for a particular procedure, the Authorities are bound to follow the same.
14. It is further urged by Mr. Chaudhary that the respondents failed to explain as to in what manner, the cause of the petitioner has been prejudiced, as it is settled law that the validity of the order has to be tested on the touchstone of the prejudice. (Vide Managing Director, E.C.I.L. v. B. Karunkar : (1994)ILLJ162SC ; State Bank of Patiala v. S.K. Sharma : (1996)IILLJ296SC ; Major G.S. Sodhi v. Union of India : 1991CriLJ1947 and S.K. Singh v. Central Bank of India : (1997)ILLJ537SC ).
15. We are of the considered opinion that this contention has no force for the reason that the respondent had been arrested immediately after the incident. He remained under detention of the Army for a period of thirty four days continuously. The role played by his so called friend remained doubtful. He was not given ninety six hours time to prepare his defence after issuing the chargesheet as mandatorily required under Rule 34 and his confession/guilt had been recorded in flagrant violation of the mandatory provisions of Rule 115. It is not permissible for the respondents to argue that his cause has not been prejudiced. The court has to assess the mental condition of the respondent after facing so much adversities and can appreciate whether he was even in a fit condition to defend himself, Thus, we find no substance in the submission and the same is rejected.
16. It is further urged by the learned Counsel for the appellants that the learned Single Judge has erred in holding that the provisions of Rule 115 (2) are also mandatory. The said sub-rule reads as under:
115. General Plea of 'guilty' or 'not guilty':
1....
2. If an accused person pleads 'guilty', that plea shall be recorded as the finding of the court; but before it is recorded, the court shall ascertain that the accused understands the nature of the charge to which he has pleaded guilty and shall inform him of the general effect of that pleading and in particular of the meaning of the charge to which he has pleaded guilty and of the difference in procedure which will be made by the plea of guilty, and shall advise him to withdraw that plea if it appears from the summary of evidence (if any) or otherwise that the accused ought to plead not guilty.
17. The provisions of the rule provide that the accused is to be told the consequence of the fact, if he pleads guilty and it is also obligatory on his part to inform the accused of the general effect of that pleading and in particular of the meaning of the charges to which he has pleaded guilty and the difference in procedure in case he does not plead guilty and he shall advise him to withdraw that plea, if it appears to him on examining the summary of the evidence or otherwise that the accused ought to plead not guilty. This aspect was also considered in Uma Shanker Pathak's case (supra) and the court observed as under:
The Army Rules have been framed under the Army Act, therefore, they have a statutory force and the mandate of the Rules cannot be violated. Any procedural deviation on contravention which has the effect of adversely affecting a person bound by the Army Rules shall have to be struck down. . A person cannot be denied procedural safeguards on the plea that proceedings are of summary nature or the person...belongs to disciplined force.... The persons bound by the Army Rules do not lose their right under Article 14 of the Constitution.
18. In Lt. Col. Prithpal Singh Bedi v. Union of India and Ors. : 1983CriLJ647 , the Hon'ble Apex Court has observed that persons subject to Army Act do not cease to be citizens of India and they are not wholly deprived of their rights under the Constitution, rather they are entitled to benefits of the liberal spirit of the Constitution. The court observed as under:
Persons subject to Army Act are citizen of this ancient land having a feeling of belonging to the civilized community governed by the liberty oriented Constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an inquiry ensuring fair, just and reasonable procedure and trial. Army is always on arraign for repelling external aggression and suppressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law; the same cannot be denied to the protectors of disorder. . .and it must be realised that an appeal from Ceaser to Ceaser's wife...has been condemned as injudicious and merely a lips sympathy to form.
19. Thus, the said judgment suggests a serious consideration at the time of judicial review inspite of the fact that the writ court cannot sit in appeal against the order of the court martial proceedings and the learned single Judge after examining the entire record has correctly recorded the finding that the provisions of Rule 115 (2) have also not been complied-with. Even otherwise, there is nothing to be examined as an appellate court because there is no evidence on record. The respondent pleaded guilty and the officer incharge awarded the punishment. We have seen the original record produced by Mr. Chaudhary and our conscience was shocked after finding out that the guilt recorded by the officer incharge, alleged to have been made by the respondent does not even bear the signature of the respondent. In such a case, the sanctity of such confession becomes doubtful. The case of a person belonging to disciplined 'force requires special considerations. It cannot be examined like a civil case, where various other laws of various statutes e.g. Evidence Act, Code of Civil Procedure or Code of Criminal Procedure or Principles of Natural Justice or provisions of Article 311 of the Constitution are applicable. The issue of maintaining the discipline can also not be ignored.
20. The Constitution Bench of the Supreme Court in R. Viswan and Ors. v. Union of India and Ors. : (1983)IILLJ157SC has laid great emphasis on discipline as it observed as under:
Moral and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the Armed Forces and to maintain discipline amongst them. Any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination affecting the well being and imperiling the human rights of the entire people of the country.
21. Thus, the requirement of moral, discipline and justice has to reconciled. There is no scarcity of examples in history and we see it in day to day life also that even in the disciplined forces, forced moral and discipline without assured justice breeds defiance and belligerency. The reasons recorded by the learned Single Judge to hold the provisions mandatory are cogent and we see no ground to differ from the same.
22. Considering the entire case in the totality of the circumstances and particularly taking into consideration that in such a case, it is not permissible to examine as to under what circumstances, the offence has been committed, since in the instant case, the respondent has taken the plea from the very beginning that he had been abused by the said Naib Subedar Jaswant Singh in the name of his mother and in ordinary criminal case, he could have easily taken the plea that being abused in the name of his mother. We cannot rule out the possibility that he lost his sense and was actuated by a sudden provocation. In all probability, he became so furious and took the law in his own hands in the circumstances, which forced him to do so. As stated above, principles of natural justice are also not applicable and as the provisions of Rule 34 (1) and 115 (2) are mandatory, we find no infirmity or illegality in the findings of the learned Single Judge that the trial has vitiated for non-compliance of the provisions of these rules.
Quantum of Punishment:
23. Even if for the sake of argument, it is assumed that the said provisions are not mandatory, Mr. Nanda has vehemently argued that the punishment of dismissal from service and six months R.I. taken together is disproportionate to the gravity of the offence committed by the respondent.
24. This issue has been considered by the Hon'ble Supreme Court in a catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and thus would violate the mandate of Article 14 of the Constitution. Thus, being illegal, it cannot be enforced. (vide Bhagat Ram v. State of U.P. : (1983)IILLJ1SC ; S.K. Giri v. Home Secretary, Ministry of Home Affairs and Ors. 1995 Supp (3) SCC 519; UOI v. Siriraj Sharma 1994 Supp (3) SCC 755; Bishan Singh and Ors. v. State of Punjab : (1997)ILLJ926SC ; Ranjit Thakur v. UOI and Ors. : 1988CriLJ158 ; and B.C. Chaturvedi v. UOI and Ors. : (1996)ILLJ1231SC ].
Judicial Review of quantum of punishment:
25. The view may be that courts can review on the decision making process' and not the 'decision' of the competent authority. Thus, court not being a court of appeal, is incompetent to substitute the punishment imposed by a disciplinary authority. The court can review to correct errors of law of fundamental procedural requirements which may lead to manifest injustice and can interfere with the impugned order in such exceptional circumstances. [vide UOI v. Parmanand : (1989)IILLJ57SC ; State Bank of India v. Samerandra Kishore Endow : (1994)ILLJ872SC ; State of Punjab v. Surjit Singh : (1996)IILLJ386SC ; State of UP v. Ashok Kumar Singh : AIR1996SC736 ; State of UP v. Nand Kishore Shukla and Anr. AIR 1996 SC 1516; Transport Commissioner, Madras v. Thiru ARK Moorthy : (1995)1SCC332 ; Rai Bareilly Kshetriya Gramin Bank v. Bhola Nath Singh and Ors. : (1999)ILLJ947SC ; and State of Punjab v. Bakshish Singh : AIR1997SC2696 ].
26. However in Ranjeet Thakur (supra), the Hon'ble Apex Court observed as under:
But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.
27. The said judgment has been approved and reiterated by the Apex Court in its recent judgment in Union of India v. Ganayuthem : (2000)IILLJ648SC , after examining elaborately the concept of reasonableness, rationality and proportionality.
28. In B.C. Chaturvedi (supra) after examining the various earlier decisions of the Supreme Court, the court observed that in exercise of the powers of judicial review, the court cannot 'normally' substitute its own conclusion of penalty. However, if penalty imposed by an Authority 'shocks the conscience' of the court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself 'impose appropriate punishment with cogent reasons in support thereof'. While examining the issue of proportionality, court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced him to do so, though he had no intention to do so. [Giriraj Sharma (supra)]. The court may further examine the effect if order is set aside or substituted by some other minor penalty.
29. In State Bank of Patiala v. S.K. Sharma : (1996)IILLJ296SC , the Apex Court observed as under:
There may be situations where the interest 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.
30. Thus, we are of the considered opinion that the punishment awarded by the respondents is disproportionate and could not have been awarded.
Back wages:
31. Mr Chaudhary has vehemently argued that the respondent could not have been reinstated with full back wages.
32. The issue of entitlement of back wages has been considered time and again by the Hon'ble Apex Court and it has been dealt with differently in different circumstances.
(A) If the termination order is quashed, the employee would be entitled for reinstatement and full back wages, unless there are reasons on record which would justify a departure from the normal order and in that case, the party objecting to it must establish the circumstances necessitated departure. [vide Punjab National Bank Ltd. v. P.N.B. Employees Federation : (1959)IILLJ666SC ; Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd. : (1978)IILLJ474SC ; Manorma Verma v. State of Bihar and Ors. 1994 Suppl(3) SCC 671; Santosh Yadav v. State of Haryana and Ors. : AIR1996SC3328 ; Ramesh Chandra and Ors. v. Delhi Administration and Ors. : (1996)10SCC409 and Daya Ram Dayal v. State of Madhya Pradesh : AIR1997SC3269 ).
(B) If the impugned termination order is set aside only on the ground of being provided with a severe punishment i.e. where the competent court comes to the conclusion that the quantum of punishment was not commensurate with the gravity of misconduct, deinquent employee will not be entitled for back wages for the reason that 'public money could not be spent as a premium for such deviant conduct'. [Vide Sub Divisional Inspector (Postal) and Ors. v. K.K. Pavitheran : (1996)11SCC695 ; Raj. State Road Corporation v. Bhagyomal and Ors. 1994 Suppl (1) SCC 573; Malkiat Singh v. State of Punjab : (1996)IILLJ432SC ; Deputy Commissioner of Police and Ors. v. Akhlaq Ahmad 1995 SCC (L/S) 897].
(C) If termination order is quashed on technical grounds, where the authority can further proceed against the delinquent employee, the question of payment of back wages, in case reinstatement is ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings, and depending on the final outcome, [vide C.B. judgment in Managing Director ECIL Ltd. v. B. Karunakar : (1994)ILLJ162SC ].
33. While considering the issue of entitlement of back wages, court must record a finding that employee was not otherwise gainfully employed during the relevant period and whether he was free from the blame, [vide State of U.P. and Ors. v. Atal Bihari Shastri and Ors. 1993 Suppl. (2) SCC 207].
34. In the instant case, there is nothing on record to determine whether respondent had ever been in gainful employment after dismissal from service. Therefore, it is neither desirable nor appropriate for this Court to determine this issue. Therefore, the appellants are directed to decide within a period of three months from today whether respondent is entitled for back wages and if yes, to what extent. However, if respondent is found entitled for back wages, the same shall be paid to him immediately after such determination. However in view of the facts and circumstances of the case, we are of the opinion that the cost awarded by the learned single Judge is exorbitant and, thus, it is reduced to Rs. one thousand.
35. With these modifications, the appeal is dismissed.