High Court Punjab-Haryana High Court

Gulab Rai vs State Of Haryana And Another on 2 April, 2009

Punjab-Haryana High Court
Gulab Rai vs State Of Haryana And Another on 2 April, 2009
Criminal Misc. No.M-25982 of 2005 (O&M)                      1

       In the High Court of Punjab and Haryana at Chandigarh


                          Criminal Misc. No.M-25982 of 2005 (O&M)
                          Date of decision: 2.4. 2009


Gulab Rai                                              ......Petitioner

                           Versus


State of Haryana and another
                                                    .......Respondents


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:     Mr. Virender Kumar, Advocate,
             for the petitioner.

             Mr.Sidharth Sarup, AAG, Haryana.

             Mr.Mohnish Sharma, Advocate,
             for respondent No.2.
                   ****


SABINA, J.

This petition has been filed by Gulab Rai under Section

482 of the Code of Criminal Procedure (“Cr.P.C. for short) for

quashing of FIR No. 235 dated 11.12.2004, under Sections

409/420/468/471 of the Indian Penal Code (“IPC” for short),

registered at Police Station Sadardadri, District Bhiwani.

The petitioner was working as a Lab Assistant in M & P

Lab, Charkhi Dadri, District Bhiwani in Dakshan Haryana Bijli Vitran

Nigam.

As per the allegations made in the FIR, the petitioner had
Criminal Misc. No.M-25982 of 2005 (O&M) 2

submitted his claim for Leave Travel Concession (‘LTC’ for short) in

the month of March, 1998 for travelling from Charkhi Dadri to

Trivendrum along with his family through Nagaland Tourism

Department. Payment of Rs.19,950/- was made to the petitioner

against his claim for Rs.20,000/-. During inquiry conducted by the

Vigilance Department, it was found that the bus bearing No.UIIF-

9784 had never gone on the route alleged by the petitioner.

Learned counsel for the petitioner has submitted that in

terms of Rule 2.2 of the Haryana Civil Services Rules (for short ‘the

Rules’) no action could be taken against the petitioner with regard to

an incident, which had occurred four years before institution of the

criminal proceedings.

In support of his arguments, learned counsel for the

petitioner has placed reliance on K.C.Duggal vs. State of Punjab

(P&H) 1989 (2) RSJ, 513, Sardul Singh vs. State of Punjab,

(P&H)1993 (2) RCR (Criminal), 417, R.C.Gupta vs. P.S.E.B.

(P&H), 2002(1) RSJ, 509, Gurdev Singh vs. State of Punjab (P&H)

2004 (2) RSJ, 325, O.P.Kharab vs. HVPN Ltd. and others (P&H)

2007(2) RSJ, 314 and Baldhir Singh vs. State of Punjab and

others (P&H) 2009 (1) RSJ, 351

Learned counsel for the respondent, on the other hand,

has submitted that so far Rule 2.2 of the Rules is concerned, the

same is not applicable to the criminal proceedings.

In support of his arguments, learned counsel for the
Criminal Misc. No.M-25982 of 2005 (O&M) 3

respondent has placed reliance on State of Punjab vs. Kailash

Nath 1989 (1) SCC 321 and Ranjit Singh vs. State of Punjab

(P&H) 2001(4) SCT 1089.

Rule 2.2(b) proviso 3 of the Rules reads as under:-

“No such judicial proceedings, if not instituted while the

officer was in service, whether before this 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;”

In the present case, admittedly, the criminal proceedings

were initiated against the petitioner after four years of the alleged

incident of withdrawal of the LTC.

Learned counsel for the petitioner has placed reliance on

judgments of this Court in K.C.Duggal’s case (supra) and Sardul

Singh’s case (Supra) wherein it was held that criminal proceedings

could not be initiated in respect of the allegations which related to a

period exceeding four years in terms of Rule 2.2 of the Punjab Civil

Services Rules, Volume II. The other judgments relied upon by

learned counsel for the petitioner relate to departmental proceedings

sought to be initiated after four years of the incident in question and it

was held that departmental proceedings initiated after more than four

years of the incident were liable to be set aside. The legal position

is, however, no longer res integra.

Criminal Misc. No.M-25982 of 2005 (O&M) 4

The Apex Court in Kailash Nath’s case supra has held

as under:-

“7. In the normal course what falls within the purview of

the term “conditions of service” may be classified as

salary or wages including subsistence allowance during

suspension, the periodical increments, pay -scale, leave,

provident fund, gratuity, confirmation, promotion,

seniority, tenure or termination of service, compulsory or

premature retirement, superannuation, pension, changing

the age of superannuation, deputation and disciplinary

proceedings. Whether or not a government servant

should be prosecuted for an offence committed by him

obviously cannot be treated to be something pertaining to

conditions 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

Corruption Act or an analogous law should be granted

immunity from such prosecution 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. It is likely to be an incentive

not for efficient work but for committing offences including

embezzlement and misappropriation by some of them at
Criminal Misc. No.M-25982 of 2005 (O&M) 5

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 the matter of launching prosecution. Further,

instances are not wanting 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 have expired and in

that event on account of such period having expired the

government servant concerned would succeed in

avoiding prosecution even though there may be sufficient

evidence of an offence having been committed by him.

Such a situation, in our opinion, cannot be created by

framing a rule under Article 309 of the Constitution laying

down an embargo on prosecution as a condition of

service.

8. There is another cogent ground on account of which

the submission that giving a government servant peace of

mind after his retirement 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 discriminatory
Criminal Misc. No.M-25982 of 2005 (O&M) 6

and thus arbitrary inasmuch as if peace of mind in old age

can be a good ground for immunity from prosecution for

offences committed by a person, there seems to be no

reason why such immunity 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.

9. Even on a plan 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 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”. 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

while the officer was in service, whether before his

retirement or during his re-employment shall be instituted
Criminal Misc. No.M-25982 of 2005 (O&M) 7

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.

19.It was then urged by the learned counsel for the

respondents that the third proviso to clause (b) of Rule

2.2 is in the nature of a beneficent 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 opinion,

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 interpretation with regard to a

beneficent legislation, a benefit never intended to be

conferred cannot be conferred.”

Thus, no immunity can be granted to a Government

servant for prosecution after four years have passed when the cause

of action had occurred in terms of proviso to Rule 2.2 of the relevant

Rules.

No other contention has been raised. Hence, no

interference is called for.

Accordingly, this petition is dismissed.

(SABINA)
JUDGE
April 02, 2009
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