ORDER
A.K. Sikri, J.
1. The petitioner is working as Assistant Engineer (D) KRN Zone No. 2103 in Delhi Vidyut Board (DVB). He was charge-sheeted vide Memo dated 9.9.1992 proposing to hold an enquiry against him under Regulation of the Delhi Electric Supply Undertaking (DMC) Service (Control and Appeal) Regulations, 1976 (hereinafter to be referred to as “Regulations”). In the said charge- sheet. It was alleged that while functioning as Asstt. Engineer in Zone No. 2103 (E) KRN, during the period from 1988 to 1991 failed to detect and report the illegal and unauthorised dismantling of live pole No. 852/2103 in order to extend undue benefit to the owner of House No. 85, Rani Garden and also failed to exercise effective supervision and control over his subordinate, Shri R.P. Gupta, Inspector who was Incharge of the said street lighting.
2. In the statement of Imputations of Misconduct/Misbehavior in support of the articles of charge, detail of the charge was given. Enquiry was held, Enquiry Officer submitted its report dated 24.3.98 in which the Enquiry Officer concluded as under against the petitioner:
“So taking into account the above scenario of the case, I find that the charge against shri Budh Singh, A.E. that he failed to detect and report the illegal and unauthorised dismantling of live pole no. 852/2103 in order to extend undue benefit to the owner of the House No. 85, Rani Garden and also failed to exer- cise effective supervision and control over his subordinate Shri R.P. Gupta, the Inspector who was in charge of the said street lighting, stands proved”.
3. One shri R.P. Gupta, Inspector was also served with the charge-sheet, inter alia, levelling same allegations. In respect of Shri R.P Gupta, the Enquiry Officer in a separate report of even date concluded as under:
“So taking all the above points into consideration, it is revealed that the CO, Shri R.P. Gupta has failed in his duties and violated Rule-3(1) of the CCS (Conduct) Rules, 1964. I, there- fore, hold that the charge as levelled against Shri R.P. Gupta Inspector that he while functioning as such in Zone No. 2103(D) KRN during the period from 1988 to 1991 failed to detect and report the illegal and unauthorised dismantling of live pole No. 852/2103, in order to extend benefit to the owner of H.No. 85, Rani Garden with mala fide intention stands proved”.
4. On the basis of findings recorded by Enquiry Officer, vide Memo dated 27.8.98, show cause notice was issued to the petitioner proposing the penalty of “dismissal from service which shall be a dish-qualification for future employment”. Petitioner replied to the same. After considering his reply, respondents vide their order dated 24.8.99 communicated to the petitioner the imposition of punishment of “compulsory retirement” w.e.f. 31.8.99. After doing the same exercise of show cause notice in case Shri R.P. Gupta vide Memo dated 27.8.98 punishment of penalty of reduction by three stages in his time scale of pay for a period of three years with further stipulation that he will not earn increments of pay during this period.
5. Petitioner filed the instant writ petition on 28.8.99 along with CM.9655/99 praying for stay of the impugned Memo dated 27.8.98 as per which punishment was to take from 31.8.99 on 31.8.99 while issuing show cause notice in the petition, in CM for stay, following orders were passed:
CM. 9655/99.
“In this writ petition petitioner has challenged the order of the disciplinary authority imposing the punishment of compulsory retirement from service. It is argued that no such punishment is prescribed in the disciplinary rules of the respondents. It is further argued that co-accused chargesheeted for same charges is given lesser punishment. The matter was listed on 30.8.99 when learned counsel for the respondent was asked to check up the position and seek instruction on this aspect. Learned counsel for the respondents concedes that punishment of compulsory retirement is not prescribed under the rules. He further states that respondents could impose harsh punishments of dismissal or removal and only taking a lenient view of the matter, that punishment of compulsory retirement was imposed upon the petitioner. Whatever may be the reason a punishment which is not prescribed under the rules cannot be inflicted. In view of this peculiar situation, operation of the impugned order dated 24th August, 1999 shall remain stayed till the next date of hearing.
DASTI to both the parties”.
6. Thereafter, respondents filed counter affidavit to which rejoinder- affidavit was filed by the petitioner. Since stay was operating and both the parties agreed for disposal of the case at this stage itself, the arguments were heard.
7. Mr. P.N. Mishra, learned Sr. Advocate appearing for the petitioner assailed the impugned order dated 27.8.98 by raising following three sub- missions:
1. Punishment of “compulsory retirement” is not provided in the Regulations and, therefore, no such punishment could be imposed.
2. The charge levelled against the petitioner as well as find- ings are totally vague and perverse and are not sustainable.
3. The petitioner is given discriminatory treatment as compared to Shri R.P. Gupta inasmuch as the punishment given to Shri R.P. Gupta is much less than that of the petitioner although the allegations against both the employees were of same nature.
Now, I proceed to deal with the aforesaid submissions in seriatim:
Re Penalty of “Compulsory Retirement”
Admittedly the Regulations of respondents do not provide for nature of penalty which is imposed upon the petitioner. The copy of the Regulations which was supplied during the course of hearing shows that these regula- tions are of statutory nature. Regulation-5 deals with the nature of penal- ties which can be imposed upon an employee, for good and sufficient rea- sons, Relevant portion of Regulation-5 is reproduced below:
Regulation-5.
“The following penalties may, for good, and sufficient reasons and as hereinafter provided; be imposed on an officer or other employee, namely;
(a) Minor penalties:
(i) Censure,
(ii) Withholding of his promotion;
(ii) Withholding of increments of pay.
(b) Major penalties:
(iv) Reduction in rank which shall mean either reversion to a lower post or to a lower stage in the same time scale depending on gravity of charge.
(v) removal from service which shall not be a disqualification for future employment.
(vi) Dismissal from service which shall ordinarily be a disquali- fication for future employment”.
8. I may mention here that although Regulation-5 which deals with “nature of penalties” does not stipulate the punishment of “compulsory retirement”, reference to the expression “compulsory retirement” has been made to Sub- Regulation-3 and Sub-Regulation-4 of Regulation-4 dealing with suspension. However, Regulation-4 deals with suspension only and once compulsory retirement is not mentioned as one of the penalties, such expression used in Regulation-4 would clearly be surplused. It further shows the non-applica- tion of the mind while framing these Regulations. In any case, once compul- sory retirement is not mentioned as penalty in Regulation-5, occurring of such an expression in Regulation-4 would be of no consequence.
9. A perusal of the aforesaid provision would show that admittedly “compulsory retirement” is not provided as one of the penalties. It was, accordingly, contended by counsel for the petitioner that penalty of “compulsory retirement” could not be imposed as only one of the specified penalties could be imposed upon the petitioner. I find force in this argu- ment advanced by the petitioner. As it is established principle of law that particular punishment which is not prescribed in the Regulations cannot be imposed on an employee pursuant to departmental enquiry held against him. It is the fundamental principle applicable in civilised society governed by Rule of Law. One can take guidance from the principle enshrined in criminal jurisprudence to this effect contained in maximum “NULLA POENA SINE LEGE”. This important maxim leads to the proposition that a person should not be made to suffer criminal penalties except for a clear breach of existing criminal law, that law being precise and well defined. This maxim thus prohibits-
(i) the introduction of new crimes which operate retrospectively under which a person might be found guilty of crime for doing an act which was not criminal when he did it;
(ii) wide interpretation of precedents to include by analogy crimes which do not directly fall within it. Thus the extension of the criminal law in the way, for example, in which the civil law of negligence has been extended is undesirable;
(iii) the formulation of criminal laws in wide and vague terms.
10. Thus a person cannot be punished for an act unless it is prohibited by any law. This doctrine which is based on common sense and common law, has found its routes even in service jurisprudence as can be seen from the judgment of Supreme Court in the case of A.L. Kalra Vs. The Project and Equipment Corporation of India Ltd. . When a person cannot be punished for an act which is not prescribed as misconduct, he cannot be given a penalty which is not prescribed under the Regulations. The respondents have framed service regulations in which it is stated as to which act would constitute misconduct. Therefore, an employee is put to notice that if he commits any of the acts stipulated in the said Regula- tions, it would be treated as misconduct for which he can be punished, if commission of the said act is proved in an enquiry held against him. Similarly, the Regulations stipulate the penalties and thus an employee is put to notice of the kind of penalties which can be inflicted once he commits any of misconduct enumerated in the Regulations. Therefore, he knows the consequence of a commission of misconduct in the form of penalties which are prescribed. When a penalty is not at all prescribed imposing of such a penalty is, therefore, clearly be barred and would also be against the Principles of Natural Justice.
11. Mr. S. Tripathy, learned counsel for the DVB could not quarrel with the aforesaid prohibition of law. However, his ingenuity has developed attractive argument in order to come out this situation. It is another matter that he remains unsuccessful in his attempt. He strenuously argued that order of “compulsory retirement” should be treated as facet of Article 310 of the Constitution of India invoking the “Doctrine of Pleasure” and, therefore, contended that such an order can be passed even if not provided under the Rules. In support of his submission he tried to draw sustenance from the judgment of Supreme Court in the case of K. Kandaswamy Vs. Union of India and another with particular reference to Paras 9 and 10 thereof. These paras read as under:
“9. While exercising the power under Rule 56(j) of the Fundamen- tal Rules, the appropriate authority has to weigh several circum- stances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energise its machinery by weeding out dead wood, inefficient, corrupt and people of doubtful integrity by compul- sorily retiring them from service. When the appropriate authority forms bona fide opinion that compulsory retirement of the govern- ment employee is in the public interest, court would not inter- fere with the order. In S. Ramachandra Raju Vs. State of Orissa, a Bench of this Court to which one of us (K. Ramaswamy, J.) was a member, considered the entire case law and held that: (SCC PP. 4320-31, para 9)
“…the Government must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood needs to be removed to argument efficiency. Integrity in public service needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority. On consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the Government officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsori- ly retire a government officer”.
10. Higher the ladder the officer scales in the echelons of service, greater should be the transparency of integrity, honesty, character and dedication to duty. Work culture and self- discipline augment his experience. Security of service gives fillip to accelerate assiduity to stay in line and measure up to the expected standards of efficiency by the government employee. Thereby they ultimately aid to achieve excellence in public service. The security of service provided by Article 311 of the Constitution and the Statutory rules made under proviso to Arti- cle 309 would thus ensure to remove deficiency and incompetence and augment efficiency of public administration. The rights- constitutional or statutory-carry with them corollary duty to maintain efficiency, integrity and dedication to public service. Unfortunately, the latter is being overlooked and neglected and the former unduly gets emphasised. The appropriate Government or the authority would, therefore, need to consider the totality of the facts and circumstances appropriate in each case and would form the opinion whether compulsory retirement of a government employe would be in the public interest. The opinion must be based on the material on record; otherwise it would amount to arbitrary or colourable exercise of power”.
12. He also relied upon Para-18 of the judgment of Supreme Court in the case of Union of India and others Vs. Dulal Dutt which reads as under:
“18. It will be noticed that the Tribunal completely erred in assuming, in the circumstances of the case, that there ought to have been a speaking order for compulsory retirement. This Court, has been repeatedly emphasising right from the case of R.L. Butail V. Union of India and Union of India v. J.N. Sinha that an order of a compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satis- faction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. From the very order of the Tribunal it is clear that the Government had, before it, the report of the Review Committee yet it thought it fit of compulsorily retiring the respondent. The order cannot be called either mala fide or arbitrary in law”.
13. Making the aforesaid observations as basis of his arguments, counsel for the respondents argued that going by the nature of “compulsory retire- ment”, it was not necessary that such a punishment should have been prescribed in the Rules and in the absence thereof also this penalty could be imposed upon the petitioner. He was further at pains to argue that the punishment imposed upon the petitioner is in fact done after taking lenient view of the matter because the DVB was entitled to give the stricter punishment of “Removal from service” or “dismissal from service” and had any of these penalties been imposed, the petitioner would not have been entitled to even terminal benefits.
14. The stand taken by the respondents, may look attractive but is miscon- ceived to say the least, once the proper import of “compulsory retirement” is examined. Order of “compulsory retirement” can be passed administrative- ly as well as by way of penalty after holding enquiry against an employee. Considerations are totally different in both the cases although the effect of order of compulsory retirement passed against the employee in both the cases is same. In the former case the order of “compulsory retirement” is not a punishment. It implies no stigma nor any suggestion of misbehavior. It is passed after the employee has rendered particular number of years of service or has attained a particular age as prescribed in the Rules containing such provision. At that point of time employer is to form an opinion whether or not to retire an employee in public interest. If the compe- tent authority bona fide forms the opinion that it is in the public interest to compulsorily retire an employee, the correctness of its opinion cannot be challenged before the Court. (Hari Nandan Sharan Bhatnagar Vs. S.N. Dikshit and Another ). The order is passed on the subjective satisfaction of the Government. Principles of Natural Justice have no place in the context of an order of “compulsory retirement” when passed in exercise of administrative powers of the employer. If such an order is challenged, the judicial review is entirely on different grounds. As such an order is treated as not an order of punishment which attaches any stigma or suggestion of misbehaviour. (Shri Baikuntha Nath Das & Anr. Vs. Chief District Medicial Officer, Baripada and Anr. ). The judgment cited by the respondent deal with this kind of “compulsory retirement” which falls within the ambit of Article 310 of the constitution.
15. However, the position would be totally different if the order of compulsory retirement is passed by way of penalty after holding an enquiry. In that case it amounts to removal of service and provisions of Article 311 are attracted: (Union of India and another Vs. Tulsiram Patel ). In such a case the employee is given a charge-sheet, as in the instant case, leveling allegation of Misconduct/Misbehavior against him. Appropriate enquiry is held in accordance with Principles of Natural Justice and the penalty of compulsory retirement amounts to punishment with stigma. Therefore, the judgment cited by the respondents have no applica- tion in such a case which relates to the passing of order of compulsory retirement in exercise of administrative powers and not as a result of disciplinary enquiry. Thus once the order of compulsory retirement is the result of disciplinary action and passed by way of punishment after holding departmental enquiry under the relevant regulations, this penalty can be imposed only if it is prescribed in the Rules.
16. For this reason alone, the impugned order warrants to be quashed. Re: Findings of E.O.:
17. In support of his second submission Mr. P.N. Mishra, learned senior counsel referred to the charge-sheet wherein Statement of Imputations of Misconduct is levelled against the petitioner. It was submitted by the petitioner that the allegations relate to incident of dismantling of Pole No. 852 along with LV Mains and kept aside on a date prior to 28.2.91 which was allegedly done at the instance of one shri Satpal Ahuja R/0. 85 Rani Garden, Geeta Colony, Delhi. It is further alleged that since Pole No. 852 was live pole, it could not have ordinarily been dismantled without the help of persons skilled in such dismantling and no report about the disman- tling of this pole was made by Zonal Staff of law enforcing authority prior to 8.3.91. Admittedly, after 8.3.91 report to this effect was made by Shri Budh Singh i.e. the petitioner. After stating the incident, the imputations against the petitioner read as under:
“The report dated 8.3.1991 made by Sh. Budh Singh to SHO, PO Geeta Colony in the matter was only after the matter had become known to the Vigilance Section and not in the normal course.
It is also probable that Sh. Budh Singh. AE took no action to ensure that supply of electrical energy to other street light pole in the vicinity is not adversely affected by the removal of pole no. 852.
It is, therefore, probable that Sh. Budh Singh, AE, omitted to report the dismantling of the street light pole in question in order to enabling Sh. Sat Pal Ahuja to take undue advantage for extraneous consideration”.
18. Referring to the aforesaid imputations, the counsel argued that the charge-sheet is vague inasmuch as per the charge-sheet itself, it is men- tioned that there is a probability that petitioner has not taken any action to ensure that supply of electric energy to other street light pole in the vicinity not adversely affected and is omitted to report with the purpose of enabling Shri Sat Pal Ahuja to take advantage is also on probabilities. Mr. P.N. Mishra then referred to the findings of the Enquiry Officer. The relevant portion of which reads as under:
“The prosecution relied upon four listed documents which were sent along with the charged memo and the statement of imputations of misconduct against the CO viz. i) Joint Inspection Report dated 8.3.1991 on IR No. 408019-408020 Ex. S-1 and IA, (ii) Joint Inspection Report dated 8.10.91 on IR No. 248542-43 Ex. S-2, 2A (iii) Statement dt. 14.3.91 of Shri Budh Singh, AE, Ex, S-3, 3A and 3B and (iv) Statement dated 14.3.91 of Shri R.P. Gupta, Inspector as Ex. S-4 and these documents were duly got confirmed through the listed PWs viz. S/Sh. M.M. Gangaraju who appeared as PW-1, Shri N.K. Rohtagi, who appeared as PW-2, Shri P.K. Varshney PW-3 and Shri B.S. Chauhan who appeared before the Enquiry Proceedings as PW-4.
PW-1, during the cross examination by Shri N.N. Shrivastava DA on behalf of the CO, has stated that he can not say whether Pole No. 852 was erected within the boundary of Rani Garden or outside the boundary of Rani Garden. There were no live mains on pole No. 851 and the so called pole no. 852 erected near the fencing poles A,B,C and D. He further stated that he cannot say whether the poles were erected by C&A deptt. of the Distt. All the PWs have admitted that the pole no. 852/2103 was lying along with the D- clamp after dismantling from the original place and was kept and found with D-clamp lying outside the house No. 83, Rani Garden. The CO, Shri Budh Singh has also admitted in his statement in the Vigilance that this particular area pertained to his Inspector shri R.P. Gupta and who had the duty of maintenance of street lighting poles in that area. Since the CO Shri Budh Singh was head to the another CO Shri R.P. Gupta, he was supposed to have the knowledge of such occurrence because this comes under the jurisdiction of the duties of his subordinate staff. When all the other poles are found erected except that no. 852, it makes a doubt that there might have been some understanding to help some resident for unauthorised encroachment in the area”.
19. It was submitted that in none of the joint Inspection Reports petitioner was implicated. Even as per the observations of the Enquiry Officer, nothing could be proved against the petitioner and the petitioner was implicated only because of the reason that area in question comes under Shri R.P. Gupta, his subordinate staff and petitioner being the head was supposed to have the knowledge of occurrence. It was further argued that the conclusion itself was based on conjectures as is clear from the follow- ing observations of the Enquiry Officer”.
“When all the other poles are erected except that of 852, it makes a doubt that there might have been some understanding to help some residents for unauthorised encroachment in the area”.
20. The perusal of the imputation charges as well as Enquiry Report shows that Disciplinary Authority while issuing charge-sheet as well as Enquiry Officer while determining the findings ventured into the area of conjectures only. The charge-sheet itself is based on probabilities without showing direct evidence or even circumstantial evidence by which the petitioner could be implicated and the chargesheet itself used the expression “probable” while levelling allegations against the petitioner. There is no cogent evidence which is produced before the Enquiry Officer to substanti- ate the allegation. Even as per the findings recorded by the Enquiry Offi- cer, what is proved is that Pole No. 852/2103 was dismantled from the original place as it was found with D-clamp lying outside House No. 83 Rani Garden. However, whether it was work of the petitioner is not established even by any circumstantial evidence. In fact this is not even an allegation against the petitioner. In fact PW-1 has even gone to the extent of saying that he cannot say whether Pole No. 852 was erected within the boundary of Rani Garden or outside the boundary of Rani Garden. There were no live mains on Pole No. 851 and the so called Pole No. 852 erected near the fencing poles A,B,C & D. The involvement of petitioner is stated to be established only on the ground that particular area pertains to his Inspector Shri R.P. Gupta. It is thus impliedly admitted that there is no in- volvement of the petitioner. What is stated is that since the particular area came under Shri R.P. Gupta of whom the petitioner was the head, he was supposed to have the knowledge of occurrence. Even it is presumed to be correct, at the most it can be said that petitioner was negligent in his duty in not coming to know well in time about the alleged dismantling of the pole. From this it cannot be concluded that there was any understanding between him and some residents to help the residents for unauthorised encroachment in the area. Moreover even Enquiry Officer does not say so categorically but he is doubtful about the same. Although it is not necessary to prove the allegations in the departmental enquiry beyond reasonable doubt, and even circumstantial evidence is sufficient, such type of “doubt” as expressed by the Enquiry Officer himself cannot take the shape of proof. Therefore, I am of the considered opinion that the levelling of the charge and the findings of Enquiry Officer are based on surmises and conjectures so far as petitioner is concerned and the conclusion arrived at by the Enquiry Officer’s finding that “the charge against Shri Budh Singh, A.E. that he failed to detect and report the illegal and unauthorised dismantling of live pole No. 852/2103 in order to extend undue benefits to the owner of the House No. 85, Rani Garden and also failed to exercise effective supervision and control over his subordinates Shri R.P. Gupta, the Inspector who was in charge of the said street lighting, stands proved” is perverse and cannot stand judicial scrutiny. In fact it is based on no evidence at all. Impugned order of punishment is liable to be quashed even on this ground.
Re: Discrimination qua R.P. Gupta
21. It was argued by Mr. P.N. Mishra, learned senior counsel for the petitioner that as per the findings of the Enquiry Officer himself, petitioner was implicated simply because he was head to Shri R.P. Gupta and, therefore, petitioner was supposed to have the knowledge of occurrence, but as far as Shri R.P. Gupta is concerned, he was directly concerned with the maintenance work in the area in question. This was as per the report of the Enquiry Officer itself and in support of this he referred to the findings in respect of Shri R.P. Gupta and particularly referred to the following observations: “Since, the maintenance work was to be looked after by the charged Official, Shri R.P. Gupta, he should have detected the dismantling of the poles and reported the matter to his superior. But he (CO) Shri R.P. Gupta failed in his duty which attracts some doubt of his being in connivance with the other CO Shri Budh Singh”.
22. Therefore, it was argued, since the alleged involvement of Shri R.P. Gupta, as per the report was more than that of the petitioner, imposition of higher penalty on the petitioner and letting off Shri R.P. Gupta lightly was not proper.
23. Normally, it is for the disciplinary authority to take into account the gravity of the charge levelled against each officer, the position which such an officer holds before deciding as to what punishment is to be imposed. However, I need not go into this question since in view of my findings recorded above, the impugned punishment order has to be quashed.
24. The result of my aforesaid discussion is that this petition succeeds. Impugned order dated 24.8.99 imposing the punishment of “compulsory retirement” is hereby quashed. Since petitioner continues to be in service as a result of interim order dated 31.8.99 passed in this case, no further directions are required to be given.
No Orders as to costs.