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PETITIONER: STATE OF PUNJAB & ORS.

       Vs.

RESPONDENT: KAILASH NATH ETC.

DATE OF JUDGMENT22/11/1988

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) RAY, B.C. (J)

CITATION:  1989 AIR  558            1988 SCR  Supl. (3) 911  1989 SCC  (1) 321        JT 1988 (4)   502  1988 SCALE  (2)1464

ACT:     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 of proceedings. %     Words and Phrases: ‘Conditions of service’--Meaning of.

HEADNOTE:     On  the  basis of a vigilance  enquiry  against  Kailash Nath, respondent, pertaining to the purchase of sign  boards by  him  while working as Executive Engineer  in  the  State Public  Works  Department, a First  Information  Report  was lodged against him in August 1985. The 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 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 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 to recruitment and conditions of service of persons mentioned therein.[916E]     (2)  The  expression "conditions of service"  means  all those  conditions 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.                                                   PG NO 911                                                   PG NO 912     (3)  Rule  2.2.  is in Chapter II of  the  Punjab  Civil Service  Rules which deals with ordinary pension. There  can

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be  no manner of doubt that making provision with regard  to pension falls within the purview of "conditions of service". [918D]     (4)  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. [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. [918C]     (6)  Making a provision that a government servant,  even if  he  is guilty of grave misconduct  or  negligence  which constitutes an offencepunishable 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. [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 reasonable  classification,  if  the purpose  of granting immunity from prosecution  is  ensuring peace of mind in old age. [918B]     (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 general embargo  on prosecution of a government servant after his retirement 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]     (9)  Even if on first 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 was  made. This purpose can be achieved if the said proviso by adopting the rule of reading down is interpreted to mean that even if                                                   PG NO 913 a government servant  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  word "such" in the beginning of  the  third proviso also  supports  this  interpretation. [919D-H;920A]     (10) By applying the role of interpretation with  regard to a beneficent legislation, a benefit never intended to  be conferred cannot be conferred. [923D]     (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 Kailash Nath is  dismissed whereas the appeals against Mangal Singh Minhas are allowed. [924F]     Des  Raj Singhal v. State of Punjab, [1986]  P.L.R.  86; State  of Madhya Pradesh & Ors. v. Shardul Singh,  [1970]  3 SCR 302; I.N. Subba Reddy v. Andhra University, [1976] 3 SCR

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1013;  M/s. Ram Narain Sons Ltd. v. Asstt.  Commissioner  of Sales Tax and Others, [1955] 2 SCR 483; Abdul Jabar Butt  v. State   of  Jammu  &  Kashmir,  [1957]  SCR  51;   Ishverlal Thanorelal  Almaule v. Motibhai Nagjibhai [1966] 1 SCR  367; P.P. Venkatavardan v. The State of Tamil Nadu by the  Deputy Superintendent  of  Police,  Vigilance  and  Anti-corruption Vellore, [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.

JUDGMENT:     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  2993  of  1986 respectively.    R.S. Suri for the Appellants.     M.R.  Sharma, Kapil Sibal, M.C. Dhingra, T.S. Arora  and Miss Kamini Jaiswal for Respondents.                                                   PG NO 914     The Judgment of the Court was delivered by     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 year 1979. On various  dates  in 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.   vigilance  enquiry  was  instituted  by   the Vigilance   Bureau  to  enquire  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 October 31, 1982.     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 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.     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 including wax and  import  lincences  are dealt  with. A First Information Report was  lodged  against the  respondent  on  June  19, 1980.  It  appears  that  the respondent  applied in the High Court of Punjab and  Haryana 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

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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 application   in  the  High  Court  for  quashing   of   the prosecution against him. This prayer has been allowed by the                                                   PG NO 915 High  Court  by its order 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 application   of  Kailash  Nath  and  Mangal  Singh   Minhas respectively.     It  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 initiating  judicial  proceedings for  prosecution  of a government servant on the  expiry  of four  years of the cause 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, 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 interpretation of Rule 2.2, it would be useful  to 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 right  of ordering the recovery from a pension of the  whole or  part  of  any pecuniary loss caused to  Govt.  if  in  a departmental or judicial proceedings, the pensioner is found guilty  of grave misconduct or negligence during the  period of   his  service,  including  service  rendered  upon   re- employment after retirement.     Provided that:     (1)          ...      ...      ...     (2)          ...      ...      ...     (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   such institution:                                                   PG NO 916     Explanation: For the purpose of his rule.     (a)     ...     ...      ...     (b)  a  judicial  proceeding  shall  be  deemed  to   be instituted     (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 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

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embargo on prosecution of a government servant on the expiry of  a period of four years from the date of cause of  action or event mentioned therein.     Having  heard learned counsel for the parties,  we  find substance in the submission made by learned counsel for  the appellant.  Article 309 empowers making of rules  regulating the  recruitment  and  conditions  of  service  of   persons appointed  to public services and posts in  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 question certainly does not purport to regulate  recruitment  .  The  question  which,   therefore, presents itself for answer is whether the said rule if it 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  that  the  embargo  aforesaid  is   a condition of service calculated to ensure a person mentioned in  the said rule peace of mind after retirement.  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 after his retirement, even though  guilty of  committing  a grave misconduc or negligence  during  the                                                   PG NO 917 period of his service, after the lapse of a particular  time which has been fixed in the instant case as four years would fall  within  the  purview of  "conditions  of  service"  as contemplated  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  service" means  all those conditions 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.     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, 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 the fag

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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.                                                   PG NO 918     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 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.     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 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 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  M/s  Ram Narain Sons Ltd. v. Asst.  Commissioner  of Sales Tax and others, [1955]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 enacted 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.                                                   PG NO 919     With  regard to scope of a proviso, it was urged by  the learned counsel for the respondents relying on the  decision of  this Court in Ishverlal Thakorelal Almaula  v.  Motibhai Nagjibhai,  [1966]  1 SCR 367 that even  though  the  proper

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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 enactment.   It  may  at  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  prosecution of a government servant  after  his retirement  for  grave misconduct or negligence  during  the course  of the 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.  In view  of  what has been said above and keeping in  mind  the scope  of  rule  making  power  under  Article  309  of  the Constitution,  the  third  proviso to  Rule  2.2  cannot  be interpreted as laying down an absolute or general embargo on prosecution  of 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  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 permanently  or  for  a specified period and  the  right  of ordering the recovery from a pension of the whole or part of any pecuniary loss caused 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 retirement.     The  purpose of the third proviso thereto is, as is  the scope  of a 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  judicial proceedings  instituted in respect of cause of action  which arose  or  an event which took place more  than  four  years                                                   PG NO 920 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  beginning of the third proviso also supports this interpretation.     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,  Vigilance  and   Anti- corruption, Vellore, [1979] 23 MLJ (Crl) 275. Article 35 1-A in so far as it is relevant for the purpose of this case  is reproduced 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

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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 during the  period of   his  service,  including  service  rendered  upon   re- employment after retirement:     Provided that:     (a)..........     (b)..........     (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; . . .     A  similar  submission as has been made by  the  learned counsel for the respondents in the instant cases was made in the case of Venkatavardan, (supra) also. S. Natarajan, J. as his Lordship then was repelled the submission and held:     "The other point urged was that as per Article 351-A  of the  Madras  Pension Code, the right of  the  Government  to                                                   PG NO 921 withhold  the pension of a Government sevant will not  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 against him was beyond the period of four years contemplated 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(1)(a) and 5(2) of the Prevention of Corruption Act, is not controlled or restricted or trammelled in any manner by  the Madras Pension Code. The provisions of the Pension  Codemay, if  at all, be relied on only for safeguarding  the  pension and  cannot be pressed into service to defeat a  prosecution on the threshold itself."     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  exhaustive provision for  departmental  inquiries. Rule  i6.38 laid down the guidelines to be followed  by  the Superintendent  of Police in dealing 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  section  5(2)  of  the  Prevention   of Corruption  Act. His conviction as well as sentence was  set aside  and he was acquitted by the High 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  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  overrid  the provisions of the Code  of  Criminal Procedure and the Prevention  of Corruption Act.

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                                                 PG NO 922     We  may  also  point out that  the  correctness  of  the judgment of the High Court of Punjab and Haryana in the case of  Des Raj Singhal, (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 law raised  in  the appeal  was, however, not gone into and was left open to  be 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.     We now proceed to consider the other submissions made by  learned  counsel  for the respondents. It  was  urged  that since  government had the power to make suitable  amendments even retrospectively 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 the purpose of the State of Punjab in filing these appeals is really  to get  the interpretation made by the High Court 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.     It  was  also  urged  by the  learned  counsel  for  the respondents that the third proviso to clause (b) of Rule 2.2 as  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- 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 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 prosecution   may ordinarily extend.                                                   PG NO 923     We  are informed that special leave has been granted  by this   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 place an embargo on  prosecution.  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.     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,

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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.     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 be prosecuted for grave misconduct of action arose or the  incident  took place more than your  years  before  the institution  of  judicial proceedings  for  prosecution,  no exception  can be taken to that power. In  this  connection, apart  form  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  grant  pardon,  learned counsel for the respondents also relied on Harold J. Laski’s "A  Girammar  Of Politics" for the  proposition  that  every government  has  a  power  to decide  not  to  prosecute  or prosecution   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 (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.                                                   PG NO 924     Lastely,  it  was  urged  by  learned  counsel  for  the respondents  in 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 concerned, we  find substance  as regards the appeal against Kailash  Nath.  The First  Information  Report in this case was lodged  on  27th August, 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  3 1st  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 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 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 Information  Report. Since the High  Court quashed the prosecution of Mangal Singh Minhas on one ground alone  based on its earlier decision 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 prosecution,  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 prosecution on grounds, if  any,

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other than those which have already been 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 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.                           Crl. A No. 422/88 is dismissed and                           Crl. A Nos. 423-24/88 is allowed.