Holding

The third proviso of Rule 2.2(b) does not confer immunity from prosecution; it only limits the government's power to withhold pension, and therefore the FIR against Kailash Nath stands while the order quashing prosecution against Mangal Singh Minhas is set aside.

Summary

Kailash Nath, a retired Executive Engineer, was charged under the Prevention of Corruption Act for the purchase of sign boards in 1979; the FIR was filed in 1985, three years after his retirement and six years after the alleged misconduct. He challenged the FIR invoking the third proviso of Rule 2.2(b) of the Punjab Civil Service Rules, which purported to bar judicial proceedings if the cause of action arose more than four years before institution. The High Court quashed the FIR, holding the rule granted immunity, and the State appealed. The Supreme Court examined whether a rule framed under Article 309 could validly limit prosecution and held that the proviso merely restricts the government's right to withhold pension, not to bar criminal prosecution. Consequently, the appeal against Kailash Nath was dismissed, maintaining the FIR, while the appeal concerning Mangal Singh Minhas was allowed, setting aside the High Court's order and directing a fresh hearing. The Court emphasized that granting immunity for offences committed during service would be contrary to public policy and beyond the scope of "conditions of service".

Issues considered

Whether the third proviso of Rule 2.2(b) of the Punjab Civil Service Rules, framed under Article 309, creates a statutory immunity from prosecution for a government servant for offences committed during service when the cause of action arose more than four years before institution of proceedings.
Whether such a provision falls within the permissible scope of "conditions of service" under Article 309 of the Constitution.
Whether the High Court's interpretation of the rule as granting immunity was legally correct.

Legislation cited

Code of Criminal Procedure
Constitution of Indias. Article 21, s. Article 309
Indian Penal Code, 1860s. 197, s. 321, s. 432, s. 433, s. 468
Madras Pension Codes. Article 351-A
Prevention of Corruption Acts. 5(1), s. 5(2)
Punjab Civil Service Ruless. Rule 2.2(b)

Subjects

Punjab Civil Service RulesArticle 309immunity from prosecutiongovernment servantprevention of corruptionpensionproviso interpretationstatutory constructionretirementdelay in prosecution

Judgment

STATE OF PUNJAB & ORS. A
v.
KAILASH NATH ETC.

NOVEMBER 22, 1988

[B.C. RAY AND N.D. OJHA, JJ.] B

Punjab Civil Service Rules: Volume II Rule 2.2-Government
Servant-Prosecution for offence committed while in service after
retirement-Whether there is immunity if the cause of action arose four
years before the institution ofproc~edings.

Words and Phrases: 'Conditions of service'-Meaning of.
c
On the basis of a vigilance enquiry against Kailash Nath, respon-
dent, pertaining to the purchase of sign boards by him while working as
Executive Engineer in the State Pnblic Works Department, a First
Information Report was lodged against him in August 1985. The D
respondent challenged the F .I.R. in the High Court on the ground that
the same having been lodged about three years after his ..retirement in
October 1982 and about six years after the event of purchase in 1979,
was in the teeth of proviso (3) to Rule 2.2(b) of the Punjab Civil Service
Rules, Volume II, which provided that no judicial proceedings if not
instituted while the officer was in service, shall be instituted in respect E
of a cause of action which arose or an event which took place more than
four years before such institution. The same ground was taken by
Mangal Singh Minhas, respondent, when a challan' was filed against
him.

The High Court, relying on its earlier decision, quashed the First F
Information Report and the challan.

Dismissing the State appeal against Kailash Nath and allowing it
against Mangal Singh Minhas, this Court,

HELD: (1) Any rule framed under Article 309 has to be confined G
to recruitment and conditions of service of persons mentioned therein. [916E]

;i: (2) The expression "conditions of service" means all those condi-
tions which regulate the holding of a post by a person right from the
time of his appointment till his retirement and even beyond it, in
matters like pension etc. Ii
911
912 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

A (3) Rule 2.2. is in Chapter II of the Punjab Civil Service Rules
which deals with ordinary pension. There can be no manner of doubt
that making provision with regard to pension falls within the purview of
"conditions of service". [9I8D J

(4) Whether or not a government servant should be prosecuted
B for an offence committed by him obviously cannot be treated to be
someth_ing pertaining to conditions of service. [917D]

(5) Even on a plain reading of Rule 2.2, it is apparent that the
intention of framing the said rule was not to grant immunity from
prosecution to a government servant, if the conditions mentioned
therein are satisfied. ,[9I8C]
c
(6) Making a provision that a government servant, even if he is
guilty of grave misconduct or negligence which constitutes an offence
punishable either under the Penal Code or Prevention of Corruption
Act or an analogous law should be granted immunity from such pro·
D secution after the lapse of a particular period so as to provide incentive
for efficient work would not only be against public policy but would also
be counter productive. [917D-E]

(7) On the face of it, the government servants cannot constitute a
class by themselves so as to bring their case within the purview of
E reasonable classification, if the purpose of granting immunity from
prosecution Is ensuring peace of mind in old age. [9I8Bl ·

(8) Even if in a given case a proviso may amount to a substantive
provision, making of such a substantive provision, will have to be
within the framework of Article 309. If a rule containing an absolute or
F general embargo on prosecution of a government servant after his re-
tirement for grave misconduct or negligence during the course of his
service does not fall within the purview of laying down conditions of
service under Article 309, such a provision cannot in the purported
exercise of power under Article 309 be made by either incorporating it
in the substantive clause of a rule or in the proviso theretO. [919C-D J
0
(9) Even if on fll'st impression Rule 2.2 may appear to be placing
an embargo on prosecution it has to be interpreted by taking recourse
to the well settled rule of reading down a provision so as to bring it
within the framework\ of Its source of power, without, of course
frustrating the purpose for which such provision wa.• made. This
H purpose can be achieved if the said provlsO ·by adopting the rule of
., '

. STATE OF PUNJAB v. KAILASH NATH 913

reading down is interpreted to mean that even if a goveniment servant A
Is prosecuted and punished in judicial proceedings instituted in respect
of cause of action which arose or an event which took place more than
four years before such institution the government will not be entitled to
exercise the right conferred on it by the substantive provision contained
in clause (b) with regard to pension of such a government servant. The
B
word "such" in the beginning of the third proviso also supports this
interpretation. (9190-H; 920Al

(10) By applying the role of interpretation with regard to a bene-
ficent legislation, a benefit never intended to be confel'l'P.d cannot be
conferred. (9230I
c
(11) It is always open to quash a prosecution on the ground of
unexplained unconscionable delay in investigation and prosecution on
the facts of a given case. In this view of the matter. the appeal against
Kallash Nath is dismissed whereas the appeals against Mangat Singh
Minhas are allowed. [924F] .
D
Des Raj Singhal v. State o.f Punjab, (1986] P.L.R. 86; State of
Madhya Pradesh & Ors. v. Shardu/ Singh, [1970] 3 SCR 302; I.N.
Subba Reddy v. Andhra University, (1976] 3 SCR 1013; Mis. Ram
Narain Sons Ltd. v. Asstt. Commissioner of Sales Tax and Others,
[19SS] 2 SCR 483; Abdul Jabar Butt v. State of Jammu & Kashmir.
(1957] SCR 51; lshverlal Thanorelal A/maule v. Motibhai Nagjibhai, E
(1966] l SCR 367; P.P. Venkatavardan v. The State of Tamil Nadu by
the Deputy Superintendent of Police, Vigilance and Anti-corruption
Ve/lore, [1979] 23 MLJ. (Crl.) 275; State of Punjab v. Charan Singh,
(1981] 2 SCR 989; Madhashwardhari Singh and Another v. State of
• Bihar, AIR (1986) Patna (Vol. 73) page 324, referred to .
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 422-424 of 1988.

From the Judgment and Order dated 12.2.1986 and 4.9.1986
from the High Court of Punjab and Haryana in Crl. Misc. No. 5837 of
1985 and Crl. Misc. No. 4488 and 2993of1986 respectively. G

R.S. Suri for the Appellants.

M.R. Sharma, Kapil Sibal, M.C. Dhingra, T.S. Arora and Miss
Kamini Jaiswal for Respondents.
H
914 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

The Judgment of the Court was delivered by
A
OJHA, J. These appeals raise an identical question of law and
can conveniently be decided by a common order. Kailash Nath,
respondent in Criminal appeal No. 422/88, was working as Executive
Engineer in Public Works Department in the State of Punjab in the
B year 1979. On various dates fo. that year, he placed orders for the
purchase of sign boards which were required by the Department to
avoid accidents on roads and for traffic safety. The requisite sign
boards were purchased in pursuance of the aforementioned orders. In
the year 1980 some complaints were received in the Department
against the respondent pertaining to the purchase of the sign-boards.
A vigilance enquiry was instituted by the Vigilance Bureau to enquire
c into the complaints and ultimately a First Information Report was
lodged on August 27, 1985 against the respondent under sub-sections
( 1) and (2) of Section 5 of the Prevention of Corruption Act. In the
meantime, the respondent had retired from the post of Executive
Engineer with effect from Octob.er 31, 1982.
D
' The aforesaid First Information Report was challenged by the
respondent in the High Court of Punjab and Haryana in Criminal
miscellaneous No. 5837-M/85 on the ground that the same having been
lodged about three years after his retirement and about six years after
the event of purchase of sign-boards in 1979 was in the teeth of Rule
E 2.2. of the Punjab Civil Service Rules, Volume II and consequently
was liable to be quashed. The plea raised by the respondent found
favour with the High Court which relying on an earlier decision of that
Court in Des Raj Singhal v. State of Punjab, [1986] P.L.R. 82 quashed
the First Information Report by its order dated February 12, 1986.

F Mangal Singh Minhas, the respondent in Criminal Appeal Nos.
423-24/1988, was posted in the Industrial Supply Section of the
-
Directorate of Industries where various types of raw materials includ-
ing wax and import lincences are dealt with. A First Information Re:
port was lodged against the respondent on June 19, 1980. It appears
that the respondent applied in the High Court of Punjab and Haryana
G for quashing of the First Information Report on account of which
challan could not be filed and it was only when the challenge to the
First Information Report was repelled by the High Court that a challan
was filed on August 28, 1985. In the meantime, the respondent retired
as Superintendent, Directorate of Industries, Punjab, on September
30, 1983. On the challan being filed the respondent again made an
H application in the High Court for quashing of the prosecution against
''

STATE OF PUNJAll v. KAILASH NATH [OJHA, J.] 915

him. This prayer has been allowed by the High Court by its order A
dated September 4, 1986 and the prosecution against the respondent
has been quashed relying on the aforesaid decision in the case of Des
Raj Singhal v. State of Punjab. The present appeals have been filed by
the State of Punjab against the aforesaid orders passed on the applica-
tion of Kailash Nath and Mangal Singh Minhas respectively.
B
lt has been urged by learned counsel for the appellant that Rule
2.2 of the Punjab Civil Service Rules has been misinterpreted by the
High Court in holding that the said Rule placed an embargo on initiat-
ing judicial proceedings for prosecution of a government servant on
the expiry of four years of the ca_use of action or the event referred .to
in the said rule and the High Court committed an error of law in taking
the said view. Learned counsel for the respondents, on the other hand, C
submitted that the view taken by the High Court was correct and in
view of Rule 2.2 the First Information Report against Kailash Nath
and the prosecution as against Mangal Singh Minhas were rightly
quashed. In order to appreciate the respective submissions made by
learned counsel for the parties _with regard to the scope and interpreta- D
tion of Rule 2.2, it would be useful t_o extract the relevant portion of
sub-rule (b) of Rule 2.2. It reads:

"(b) The Government further reserve to themselves the
right of withholding or withdrawing a pension or any part
of it, whether permanently or for a specified period and the E
right of ordering the recovery from a pension of the whole
or part of any pecuniary loss caused to Govt. if, in a depart-
mental or judicial proceedings, the pensioner is found
guilty of grave misconduct or negligence during the period
of his service, including service rendered upon re-employ-
ment after retirement. F

Provided that:

(1)

(2) G

(3) No such judicial proceedings, if not instituted while the
·officer was in service, whether before his retirement or
during his re-employment shall be instituted in respect of a
cause of action which arose or an event which took place
more than four years before su.i;h institution: H
916 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

Explanation: .For the purpose of his rule.
A
(a)

(b) a judicial proceeding shall be deemed to be instituted

B (i) in the case of a criminal proceedings on the date on
which the complaint or report of the police officer on which
the Magistrate takes cognizance is made; ........ "

There is no dispute that Punjab Civil Service Rules have been
framed by the Governor in exercise of the power conferred on him by
Article 309 of the Constitution and that Rule 2.2 occurs in chapter II of
c Volume II of the Rules dealing with "Ordinary Pension". It has been
urged by the learned counsel for the appellant that keeping in view the
scope of Article 309 as also the purpose of Rule 2.2, the said rule
cannot be interpreted to be a rule placing an embargo on prosecution
of a government servant on the expiry of a period of four years from
D the date of cause of action or event mentioned therein.

Having heard learned counsel for the parties, we finci substance.
in the submission made by learned counsel for the appellant. Article
309 empowers making of rules regulating the recruitment and condi-
tions of service of persons appointed to public services and posts in
E connection with the affairs of the Union or any State. On the plain
language of Article 309, the proposition that any rule framed under
this article has to be confined to recruitment and conditions of service
of persons mentioned therein admits of no doubt. The rule in qµestion
certainly does not purport__to regulate recruitment. The question
which, therefore, presents itself for answer is whether the said rule if it
F is to be interpreted as one placing an embargo on institution of judicial
proceedings as against a person referred to therein for prosecution in
respect of a cause of action which arose or an event which took place
more than four years before such institution, as has been held by the
High Court can be treated to be a rule regulating the condition of
service of such a person. Learned counsel for the respondents asserts
G that the embargo aforesaid is a condition of service calculated to
ensure a person mentioned in the said rule peace of mind after retire-
ment. According to learned counsel for the respondent every
employer wants his employee to be efficient and to achieve this object,
. various incentives are given. Consequently, according to learned
counsel, an assurance to an employee that he shall not be prosecuted
H . after his retirement, even though guilty of_committing a grave miscon-
STATE OF PUNJAB v. KAILASH NATH (OJHA, J.] 917

duct or negligence during the period of his service, after the lapse of a
particular time which has been fixed in the instant case as four years A
would fall within the purview of "conditions of service" as contemp-
lated by Article 309. We find it difficult to agree with the submission.
As explained by this Court in State of Madhya Pradesh and Ors. v.
Shardul Singh, [1970] 3 SCR 302 and reiterated in I.N. Subba Reddy v.
Andhra University, [1976] 3 SCR 1013 the expression "conditions of B
service" means all those conditions which regulate the holding of a
post by a person right from the time of his appointment till his retire-
ment and even beyond it, in matters like pension etc.

In the normal course what falls within the purview of the term
"conditions of service" may be classified as salary or wages including
subsistance allowance during suspension, the periodical increments, c
pay-scale, leave, provident fund, gratuity, confirmation, promotion,
seniority, tenure or termination of service, compulsory or premature
retirement, superannuation, pension, changing the age of super-
annuation, deputation and disciplinary proceedings. Whether or not a
government servant should be prosecuted for an offence committed by D
him obviously cannot be treated to be something pertaining to condi-
tions of service. Making a provision that a government servant, even if
he is guilty of grave misconduct or negligence which constitutes an
offence punishable either under the Penal Code or Prevention of Cor-
ruption Act or an analogous law should be granted immunity from
such prosecution after the lapse of a particular period so as to provide E
incentive for efficient work would not only be against public policy but
would also be counter productive. It is likely to be an incentive not for
efficient work but for committing offences including embezzlement
and misappropriation by some of them at the fag end of their tenure of
service and making an effort that the offence is not detected within the
period prescribed for launching prosecution or manipulating delay in F
the matter of launching prosecution. Further, instances are not want-
ing where a government servant may escape prosecution at the initial
stage for want of evidence but during the course of prosecution of
some other person evidence may be led or material may be produced
which establishes complicity and guilt of such government servant. By
that time period prescribed, if any, for launching prosecution may G
have expired and in that event on account of such period having
expired the government servant concerned would succeed .il) avoiding
prosecution even though there may be sufficient~ evidence -of an
offence having been committed by him. Such a situation, in our op1h•
ion, cannot be created by framing a rule under Article 309 of the
Constitution laying down an embargo on prosecution as a condition of H
service.
918 SUPREME COURT REPORTS . [1988) Supp. 3 S.C.R.

There is another cogent ground on account of which the submis-
A
sion thatgiving a government servant peace of mind after his retire-
ment in his old age can be a good ground to grant him immunity from
prosecution cannot be accepted. This would on the face of it be dis-
criminatory and thus arbitrary inasmuch as if peace of mind in old age
can be a good ground for immunity from prosecution for offences
B committed by a person, there seems to be no reason why such immu-
nity may not be available to all old persons and should be confined
only to government servants. On the face of it, the government
servants cannot constitute a class by themselves so as to bring their
cases within the purview of reasonable classification, if the purpose of
granting immunity from prosecution is ensuring peace of mind in old
age.
c I

Even on a plain reading of Rule 2.2, it is apparent that the
intention;· of framing the said rule was not to grant immunity from
prosecution to a government servant, if the conditions mentioned the-
rein are satisfied. As seen above, Rule 2.2 is in chapter II of the
D Punjab Civil Service Rules which deals with ordinary pension. There
can be no manner of doubt that making provision with regard to pen-
sion falls within the purview of "conditions of service". The embargo
on prosecution spelt out by the High Court is not to be found in the
main rule 2.2 but in the third proviso to the said rule. It is the third
proviso which enjoins that no judicial proceedings, if not instituted
E while the officer was in service, whether before his retirement or dur-
ing his re-employment shall be instituted in respect of_ a cause of
action which arose or an event which took place more than four years
before such institution. The scope of a proviso is well settled.

In Mis Ram Narain Sons Ltd. v. Asst. Commissioner of Sales Tax
F and others, I1955) 2 SCR 483, it was held:

"It is a cardinal rule of interpretation that a proviso to a
particular provision of statute only embraces the· field
which is covered by the main provision. It carves out an
exception to the main provision to which it has been enac·
G ted as a proviso and to no other."

The same view was reiterated in Abdul Jabar Butt, v. State of
Jammu & Kashmir, [1957) SCR 51 where it was held that a proviso
. must be considered with relation· to the principle matter to which it
stands as a proviso.
H
STATE OF PUNJAB v. KAILASH NATH !OJHA, J.] 919 ·

With regard to scope of a proviso, it was urged by the learned A
counsel for the respondents relying on the decision of this Court in
lshverlal Thakorelal Almaula v. Motibhai Nagjibhai, [1966] 1SCR367
that even though. the proper function of a proviso is to except or
qualify something enacted in the substantive clause which but for the
proviso would be within that clause, there is no rule that the proviso
must always. be restricted to the ambit of the main enactn,cnt. It may at B
times amount to a substantive provision. This submission too does not
advance the case of the respondent inasmuch as even if in a given case
a proviso may amount to a substantive provision, making of such a
substantive provision will have to be within the framework of Article
309. If a rule containing an absolute or general embargo on prosecu-
tion of a government servant after his retirement for grave misconduct
or negligence during the course of the service does not fall within the
c
purview of laying down conditions of service under Article 309, such a
provision cannot in the purported exercise of power under Article 309
be made by either incorporating it in the substantive clause of a rule or
in the proviso thereto. In view of what has been said above and keep-
ing in mind the scope of rule making power under Article 309 of the D
Constitution, the third proviso to Rule 2.2 cannot be interpreted as
laying down an absolute or general embargo on prosecution of a
government servant if the conditions stated therein are satisfied. Even
if on first impression the said rule may appear to be placing such an
embargo it has to be interpreted by taking recourse to the well settled
rule of reading down a provision so as to bring it within the framework E
of its source of power without, of course, frustrating the purpose for
which such provision was made. Clause {b) .of Rule 2.2 which can be
called the substantive clause reserves to the government the right of
withholding or withdrawing a pension or any part of it, whether per-
manently or for a specified period and the right of ordering the reco-
very from a pension of the whole or part of any pecuniary loss caused F
to Govt. if, in a departmental or judicial proceeding, the pensioner is
found guilty of grave misconduct or negligence during the period of his
service, including service rendered upon re-employment after retire-
ment.

The purpose of the third proviso thereto is, as is the scope of a G
proviso, to carve out an exception to the right conferred on the
government by the substantive clause if the conditions contemplated
by the proviso are fulfilled. This purpose can be achieved if the said
proviso by adopting the rule of reading down is interpreted to mean
that even if a government servant is prosecuted and punished in judi-
cial proceedings instituted in respect of cause of action which arose or H

.-. ~
920 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.

. A an event which took place more than four years before such institution
the government will not be entitled to exercise the right conferred on it
by the substantive provision contained in clause (b) with regard to
pension of such a government servant. The word "Such" in the be-
ginning of the third proviso also supports this interpretation.

B At this place, it may be pointed out that an analogous provision
contained in Article 351-A of the Madras Pension Code came up for
consideration before the Madras High Court in P. V. Venkatavardan v.
The State of Tamil Nadu by the Deputy Superintendent of Police, Vigi-
lance and Anti-corruption, Ve/lore, [ 1979] 23 MLJ (Crl) 275. Article
351-A in so far as it is relevant for the purpose of this case is repro-
duced hereunder:

351-A. Government further reserve to themselves the
right of withholding or withdrawing a pension or any part
of it, whether permanently or for a specified period and the
right of ordering the recovery from a pension of the whole
D or part of any pecuniary loss caused to Government, if, in a
departmental or judicial proceeding, the pensioner is found
guilty of grave misconduct or negligence nuring the period
of his service, including service rendered upon re-employ-
ment after retirement:

E Provided that:

(a) ..........

(b)

p (c) no such judicial proceeding, if not instituted while the
officer was in service, whether before his retirement or
during his re-employment shall be instituted in respect
of a cause of action which arose or an event which took
place more than four years before such institution; ...

(l A similar submission as has been made by the learned counsel for the
respondents in the instant cases was made in the case uf Venkata-
vardan, (supra) also. S. Natarajan, J. as his Lordship then was repel-
led the submission and held:

"The other point urged was that as per Article 351-A of the
H Madras Pension Code, the right of the Government to
:;,

STATE OF PUNJAB v. KAILASH NATH [OJHA, J.] 921

withhold the pension of a Government sevant will not
A
cover events of grave misconduct or negligence committed
by the government servant more than four years prior to
the institution of the departmental proceedings. As the
offences alleged to have been committed by the petitioner
are referable to the years 1968 and 1969, the petitioner
contends, the filing of a charge-sheet on 5th December, 1973 B
against him was beyond the period of four years contemp-
lated under Article 351-A of the Madras Pension Code
and, therefore, the proceedings were vitiated. Even this
contention must fail, for, a prosecution under section 161
and/or section 165, Indian Penal Code, read with section
5( l)(a) and 5(2) of the Prevention of Corruption Act, is not
controlled or restricted or trammelled in any manner by the
c
Madras Pension Code. The provisions of the Pension Code
may, if at all, be relied on only for safeguarding the pen-
sion, and cannot be pressed into service to defeat a pro-
secution on the threshold itself."
D
The decision of this Court in State of Punjab v. Charan Singh,
[1981] 2 SCR 989 also throws some light on the principle involved in
the instant cases. In that case Rule 16.38 of the Punjab Police Rules
1934 came up for consideration. The Punjab Police Rules laid down
the procedure to be followed in imposing punishment on a Police
Officer found guilty of misconduct or a criminal offence and made an E
exhaustive provision for departmental inquiries. Rule 16.38 laid down
the guidelines to be followed by the Superintendent of Police in deal-
ing with a complaint about the commission of a criminal offence by a
police officer in connection with his official relations with the public.
The respondent Charan Singh in that case was a police officer and was
convicted and sentenced of an offence under section 5(1)(d) read with F
section 5(2) of the Prevention of Corruption Act. His conviction as
· well as sentence was set aside and he was acquitted by the H_igh Court
on the ground that there was non compliance with the provisions of
Rule 16.38. Setting aside the order of acquittal and remanding the case
to the High Court for fresh disposal in accordance with law, this Court
held that Rule 16.38 was not designed to be a condition precedent to G
the launching of a prosecution in a Criminal Court; it was in the nature
of instructions to the Department and was not meant to be of the
nature of sanction or permission for a prosecution, nor could it over-
ride the provisions of the Code of Criminal Procedure and the Preven-
tion of Corruption Act.
H
922 SUPREME COURT REPORTS [ 1988] Supp. 3 S.C.R.

A We may also point out that the correctness of the judgment of
the High Court of Pun jab and Haryana in the case of Des Raj Singha!,
(supra), relying upon which the orders appealed against in the instant
cases have been passed, was challenged by the State of Punjab in this
Court in Criminal Appeal No. 40 of 1987. The question of Jaw raised in
the appeal was, however, not gone into and' was left open to be
B
decided in an appropriate case inasmuch as this Court on the facts of
that case, in its order dated April 15, 1987 took the view that it would
be a futile exercise to consider the question of law involved in the
appeal for the reason that the respondent had retired as long as on
December 13, 1979.

c We now proceed to co.nsider the other submissions made by
learned counsel for the respondents. It was urged that since govern-
ment had the power to make suitable amendments even retrospec-
tively in Rule 2.2 of the Punjab Civil Service Rules in order to bring
home its intention, it was not open to it to challenge the validity of
Rule 2.2. Suffice it to say, so far as this submission is concerned that
D the purpose of the State of Punjab in filing these appeals is really to get
the interpretation made by the High Couurt of Rule 2.2 reversed and
to have the interpretation made by the Trial Court in the case of Des
Raj Singhal, (supra) restored· and not to get the said rule declared ultra
vires.
E It was also urged by the learned counsel for the respondents that
the third proviso to clause (b) of Rule 2.2 was for the benefit of a
government servant and virtually incorporates the principle underlying
Article 21 of the Constitution by fixing four years as the limit for
initiating prosecution. In support of the submission reliance was
placed on a full bench decision of the Patna High Court in Madhesh-
F wardhari Singh and Another v. State of Bihar, AIR 1986 Patna Vol. 73
Page 324. In that case, it was held that in all criminal prosecutions, the
right to a speedy public trial is now an inalienable fundamental right of
the citizen under Article 21 of the Constitution and it extends to all
criminal proceedings for all offences generically irrespective of their
nature. It was also held that giving effect to fundamental right of a
G speedy public trial, therefore, would not in any way conflict with the
provisions of the Code of Criminal Procedure and that unless the
fundamental right to speedy trial is to be whittled down into a mere
pious wish, its enforceability in Court must at least be indicated by an
outer limit to which an investigation and the trial in a criminal prosecu-
tion may ordinarily extend.
H
;i.~ '·"i

STATE OF PUNJAB v. KAILASH NATH IOJHA, J.] 923

We are informed that special leave has been granted by this A
Court against the aforesaid judgment and its correctness is thus sub
judice. That apart, even if the soundness of the principle that there
should be speedy trial may not be disputed, the said principle cannot
be invoked by the respondents in support of their interpretation of the
third proviso to clause (b) of Rule 2.2 framed under Article 309 of the
Constitution whose purpose, as already indicated above, is not to B
place an embargo on prosecution. It is always open to quash a prosecu-
tion on the ground of unexplained unconscionable delay in investiga-
tion and prosecution on the facts of a given case.

It was then urged by the learned counsel for the respondents that
the third proviso t& clause (b) of Rule 2.2 is in the nature of a benefi- c
cent legislation and in case of doubt has to be interpreted in favour of
the person for whose benefit the Rule has been framed. In our opi-
nion, keeping in view the scope of the power to frame a rule under
Article 309 and the purpose of Rule 2.2, there is no doubt with regard
- to the interpretation of the said rule. By applying the rule of interpre-
D
tation with regard to a beneficent legislation, a benefit never intended
to be conferred cannot be conferred.

Learned counsel for the respondents also submitted that the
State enjoys plenary power in the matter of prosecution for an offence
and if the Government in its wisdom thought it fit that a government
servant after his retirement should not be prosecuted for grave miscon· E
duct or negligence committed during the period of his service if the
cause of action arose or the incident took place more than four years
before the institution of judicial proceedings for prosecution, no
exception can be taken to that power. In this connection, apart from
relying on various sections of the Code of Criminal Procedure such as
sections 197, 321, 432, 433 and 468 and the power of the Governor to F
grant pardon, learned counsel for the respondents also relied on
Harold J. Laski's "A Grammar Of Politics" for the proposition that
every government has a power to decide not to prosecute or prosecu·
tion having been commenced to decide upon its discontinuance. We
are of opinion that this submission too does not help the respondents
in these appeals for the simple reason that the third proviso to clause G
(b) of Rule 2.2 has not been framed for that purpose but has been
framed for a different purpose namely to provide an exception to the
power of the government in the matter of withholding or_withdrawing
etc. of pension of a retired government servant contained in clause (b)
of Rule 2.2.
H
924 SUPREME COURT REPORTS [1988) Supp. 3 S.C.R.
Lastely, it was urged by learned counsel for the respondents in
A these appeals that on the same principle on which criminal appeal
No. 40 of 1987 in the matter of Des Raj Singhal, was dismissed these
appeals also deserve to be dismissed. So far as this submission is con-
cerned, we find substance as regards the appeal against Kailash Nath.
The First Information Report in this case was lodged on 27th August,
B 1985, that is, after about six years of-the accrual of the cause of action
"or taking place of the events which took place in 1979 and after about
three years even from 31st October 1982 when the respondent retired
from service. Now in 1988 it would be pursuing a stale matter. In this
view of the matter, we are of the opinion that the order of the High
Court quashing the First Information Report as against Kailash Nath,
respondent in criminal appeal No. 422 of 1988, deserves to be
c maintained though on a different ground.
The facts of the case, with regard to Mangal Singh Minhas,
respondent in Criminal Appeal Nos. 423-24 of 1988, however, are
different. In this case, as seen above, First Information Report was
promptly lodged on June 19, 1980. The filing of challan, however, was
D delayed on account of the steps taken by the respondent for getting the
First Information Report quashed. He retired about three years after
lodging of the First Information Report and during the pendency of
the proceedings in the High Court for quashing of the said First Infor-
mation Report. Since the High Court quashed the prosecution of
Mangal Singh Minhas on one ground alone based on its eariier deci-
E sion in the case of Des Raj Singhal and did not consider other grounds,
if any, that may have been raised by him for quashing of the prosecu-
tion, we are of the opinion that after setting aside the orders appealed
against in this case, the High Court should be required to decide afresh
the petition mde by Mangal Singh Minhas for quashing of the prosecu-
tion on grounds, if any, other than those which have already been
F considered above.
·In view of the foregoing discussion, Criminal Appeal No. 422 of
1988 as against Kailash Nath is dismissed and the order quashing the
First Information Report in his case is maintained even though on
another ground; whereas Criminal Appeal Nos. 423-24 of 1988 as
G against Mangal Singh Minhas are allowed and the orders appealed
against passed by the High Court as set aside. The High Court shall
however, decide the petition made by Mangal Singh Minhas afresh in
accordance with law in the light of the observations made above.
R.S.S.
Cr!. A No. 422/88 is dismissed and
H
Cr!. A Nos. 423-24/88 is allowed.