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.
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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) 5the 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) 6and 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) 7in 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
anita