Criminal Appeal Nos 422 424 of 1988
From the Judgment and Order dated 1221986 and 491986 from the High Court of Punjab and Haryana in Crl
No 5837 of 1985 and Crl
No 4488 and 2993 of 1986 respectively
RS Suri for the Appellants
MR Sharma Kapil Sibal MC Dhingra TS 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 42288 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 M85 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 22 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 vs State of Punjab quashed the First Information Report by its order dated February 12 1986
Mangal Singh Minhas the respondent in Criminal Appeal Nos
423 241988 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 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 vs 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 22 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 22 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 22 it would be useful to extract the relevant portion of sub rule b of Rule 22
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 22 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 22 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 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
vs Shardul Singh and reiterated in IN Subba Reddy vs Andhra University  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 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 22 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 22 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 22 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 Ms Ram Narain Sons Ltd vs Asst
Commissioner of Sales Tax and others 19552 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 vs State of Jammu  Kashmir  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 vs Motibhai Nagjibhai 1966 1 SCR 367 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 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 22 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 22 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 vs 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 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
section 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 andor section 165 Indian Penal Code read with section 51a and 52 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 vs Charan Singh  also throws some light on the principle involved in the instant cases
In that case Rule 1638 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 i638 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 51d read with section 52 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 1638
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 1638 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
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 22 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 22
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 22 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 22 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 vs State of Bihar AIR 1986 Patna Vol
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 22 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 22 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 22 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 197321432433 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 22 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 22
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 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
RSS Crl
A No 42288 is dismissed and Crl
A Nos 423 2488 is allowed


Summary:
Section 31 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation 1959 Regulation I of 1959 prohibited transfer of immovable properties situated in the scheduled areas from a member of scheduled tribe to non tribals without previous sanction of the State Government
In order to facilitate effective enforcement of the said 1959 regulations the Andhra Pradesh Scheduled Areas Land Transfer Amendment Regulation 1970 was introduced
Regulation 1970 inter alia brought the following changes namely i transfers of land in scheduled areas in favour of non tribals  were wholly prohibited in future and ii non tribals holding lands in the scheduled areas were prohibited from transferring their lands in favour of persons other than tribals
The appellants who owned lands in the scheduled areas having acquired them from tribals and non tribals  were affected by this amending Regulation of 1970
They filed writ petitions in the High Court challenging this regulation being unconstitutional
The High Court dismissed the writ petitions
Hence these appeals by Certificate under Article 1331a of the Constitution
The main contention of the appellants was that the impugned provisions were unconstitutional as being violative of Article 191f of the Constitution as it obtained at the 444 material time till it was repealed by the Constitution Forty fourth Amendment in 1979 because they imposed unreasonable restrictions on the non tribal holders of properties in the scheduled areas
Dismissing the appeals and while tracing a short history of the legislation this Court  HELD originally all the lands in these tracts were owned by the tribals 
With the advent of the non tribals  in the late 19th Century and early 20th Century the lands changed hands from tribals  to non tribals 
This change of ownership was a result of exploitation raising 1 In the context of money lending operations and 2 in the context of dubious and unconscionable dealings in the course of trade
The non tribals  had so often circumvented the legislation enacted in order to protect the tribals  by recourse to benami transactions and by recourse to dubious devices
The poor ignorant illiterate and unsophisticated tribals had succumbed to the wiles of the economically stronger and unscrupulous non tribals 
A legislation which in essence and substance aims at restoration to the tribals  of the lands which originally belonged to the tribals  but which passed into the hands of non tribals  in the aforesaid background certainly cannot be characterised as unreasonable
455G H 456A C No unreasonableness is involved in making the prohibition against transfer to non tribals  applicable to both the tribal  as also to the non tribal  owner in the scheduled area
As a matter of fact it would have been unreasonable to do otherwise
In the absence of protection the economically stronger non tribals  would in course of time devour all the available Lands and wipe out the very identity of the tribals who cannot survive in the absence of the only source of livelihood they presently have
457C D The submission that the prohibition against transferring the properties to non tribals  being in absolute terms a non tribal  cannot even raise a loan on his properties even in the event of the non tribal  being under economic compulsion to do so cannot be acceded to as it overlooks the amendment introduced by Sec
3A1 inserted by Regulation 1 of 1971
458A B Tribes of India The Struggle for Survival 1982 83 edition by Christoph von Furer Haimendorf The Continent of Circe 1965 by Nirad C Chaudhari Manchegowda and Ors
vs State of Karnataka 1984 3 SCC p 301 and Lingappa Rochanna Appelwar vs State of Maharashtra  referred to
445 The argument that the expression Iand  has been used in its restricted sense in paragraph 52a of Schedule V to the Constitution of India and therefore the impugned provisions prohibiting the transfer of lands along with structures thereon by employing the expression immovable property  is not in accordance with law is devoid of merit for two reasons firstly there is no reason to believe that land  has not been employed in its legal sense
The expression land  in its legal sense is a comprehensive expression which is wide enough to include structures if any raised thereon and secondly to interpret the expression land  in its narrow sense is to render the benevolent provisions impotent and ineffective
In that event the prohibition can be easily circumvented by just raising a farm house or a structure on the land
The impugned provisions were inserted by the Amending Regulation precisely to plug such loopholes and make the law really effective
158C D 459D E The Dictionary of English Law 19591 Edition Vol
2 p 1053 by Earl Jowitt Words and Phrases Judicially Defined By Roland Burrows Vol
IlI 1944 Edition p 206 and The Law Lexicon By p Ramanatha Aiyar Reprint Edition 1987 p 700 referred to