STATE OF PUNJAB & ORS. versus KAILASH NATH ETC.

Citation: [1988] SUPP. 3 S.C.R. 911 · Decided: 22-11-1988 · Supreme Court of India · Bench: B.C. RAY · Disposal: Disposed off

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Judgment (excerpt)

STATE OF PUNJAB & ORS. 
v. 
KAILASH NATH ETC. 
NOVEMBER 22, 1988 
[B.C. RAY AND N.D. OJHA, JJ.] 
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. 
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 
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, 
A 
B 
c 
D 
E 
F 
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 
B 
c 
( 4) Whether or not a government servant should be prosecuted 
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] 
( 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 
., 
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. STATE OF PUNJAB v. KAILASH NATH 
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