Full Text
HIGH COURT OF DELHI
JUDGMENT
SANDEEP SHARMA ..... Petitioner
Through: Mr. Sanjoy Ghose, Adv. with Mr. Rhishabh Jetley & Mr. Sumedh Rishi, Advs.
Through: Mr. Dinesh Agnani, Sr. Adv. with Mr. Inder Jit Singh, Adv.
1. This petition has been filed by the petitioner with the following prayers: “a) issue a writ of certiorari or mandamus quashing the Impugned Orders dated 25.09.2013 and 09.01.2014 as illegal, unfair, arbitrary and unjust and directing the Respondents to reinstate the Petitioner in service with all consequential benefits and continuity of service; b) pass any such order or further orders that this as this Hon'ble Court may deem just and fair in the facts of the case in the interest of justice.”
2. It is the case of the petitioner that he has been an employee of the respondent company for 15 years from 1998 till September 25, 2013; i.e., the date, on which, he was illegally removed from service. The petitioner was appointed on the permanent post as Junior Supervisor (Travel), Foreign Exchange in non-unionised Supervisory Grade - I on December 18, 2007. The petitioner was on 2021:DHC:1751 W.P.(C) 1540/2014 Page 2/36 probation vide appointment letter December 18, 2007. The services of the petitioner were confirmed vide letter dated December 12, 2008, with effect from December 18, 2008. Thereafter the petitioner was promoted to the post of Supervisor (Travel), Foreign Exchange with effect from April 01, 2011 vide letter dated November 10,
2011. His post re-designated as “Officer (Forex)” with effect from July 01, 2012.
3. It is the petitioner‟s case that one Manoj Bahuguna, Officer (Travel), who was also an employee of the Respondent for 10 years, working at its facility at the RITES office at Gurgaon, Haryana called up the petitioner on April 02, 2013 seeking US$ 5,000/- for use by RITES‟ General Manager on credit basis. This request was declined by the petitioner as such a transaction was not provided for in the guidelines. On the same day Manoj Bahuguna again called the petitioner and stated that for his requirement of foreign exchange, he had approached M/s. Weizmann Forex Ltd. („Weizmann‟ for short) and requested the petitioner to give a positive identification/reference in case they contacted the petitioner. A few hours thereafter one Rajeev of Weizmann telephonically enquired from the petitioner as to whether Manoj Bahuguna was in fact an employee of the respondent; to which the petitioner replied in the affirmative and stated that Manoj Bahuguna was a permanent employee of the respondent and was currently posted at the RITES office to take care of travel requirements of their officials. While the petitioner did not have much interaction with Manoj Bahuguna, he obliged as a matter of professional W.P.(C) 1540/2014 Page 3/36 courtesy to a colleague who had been working in the company for the last 10 years.
4. Thereafter on April 16, 2013 he again received a telephonic call from Rajeev of Weizmann stating that they were about to raise an invoice for US$ 30,000/-, allegedly delivered to Manoj Bahuguna. The petitioner went to the office of Weizmann and impressed upon them, to not raise such an invoice, clarifying that Manoj Bahuguna had not acted in his official capacity. On the basis of clarification of the petitioner, no such invoice was raised by Weizmann and the latter has not complained against the petitioner for any infraction or wrong doing.
5. On April 17, 2013 the petitioner then intimated his immediate superior, Sandhya Malik (petitioner‟s reporting officer) and Pukhraj Sabarwal (Travel and Tours) of the respondent company. He was directed to record a statement in writing about the incident and in good faith the petitioner gave such a statement. The officers of the respondent situated in Delhi, namely Anil Gaba and V.B. Sharma checked stock of the foreign currency and inspected the books of accounts of the petitioner and found the same to be in order.
6. It is the case of the petitioner that, on April 18, 2013 two officers, one Sandeep Das from Accounts branch and one Mr. Sen from Legal branch from the Head Office in Kolkata came to Delhi and interacted with the petitioner without informing the petitioner that they were authorized to conduct a formal preliminary inquiry. During the interaction the petitioner stated the factual position in good faith. The said officers also conducted a similar stock W.P.(C) 1540/2014 Page 4/36 verification and found everything to be in order. The petitioner also was made to give a statement to one Mr. Ojha of the Vigilance department. The petitioner has filed the copies of the statement recorded on April 18, 2013. Thereafter, the petitioner was placed under suspension vide suspension letter April 18, 2013.
7. A charge-sheet was issued to the petitioner on May 18, 2013 wherein it was alleged that the petitioner acting in connivance with Manoj Bahuguna had failed to inform his controlling officer about the foreign exchange transaction executed by Manoj Bahuguna. It was also alleged against the petitioner that the petitioner used his position in the respondent company to influence an employee of Weizmann by introducing Manoj Bahuguna for personal gain.
8. It is his case that the petitioner that on his representations, he was, on June 06, 2013 provided a copy of the Conduct, Discipline and Appeal Rules („CDA Rules‟, in short) of the Respondent. However, the request for being provided with a copy of the report of the inquiry committee which had conducted the preliminary investigation was denied stating that the said report was not a part of the memo of charge. One of the allegations under the Articles of the Charge against the petitioner was that the petitioner had failed to inform the inquiry team during the preliminary inquiry about the transaction of US$ 60,000/- which allegedly took place between Manoj Bahuguna and Vivek of Weizmann.
9. It is the case of the petitioner that he, on June 8, 2013 made a representation for being provided with documents received from Weizmann and the statement of Manoj Bahuguna for submitting a W.P.(C) 1540/2014 Page 5/36 reply to the chargesheet and that the denial of these documents would amount to violation of natural justice. The petitioner denied that he had ever executed any transaction without the permission of his superiors and that there was no question of any favour to Weizmann. The petitioner stated that the guidelines for day-to-day money transaction of the respondent were being followed. It was the case of the petitioner that the officials of the respondent company had tallied and checked the foreign exchange and cash balances available with the petitioner and had found nothing amiss.
10. The petitioner on July 19, 2013 was informed by the respondent that his explanation was unsatisfactory and a formal disciplinary inquiry would be held into the charges leveled against him. A. K. Khullar, Chief Consultant (Tours) was appointed as Inquiry Officer. As per the CDA Rules only an officer could be appointed as Inquiry Officer and the Inquiry Officer at the time was only a consultant and therefore such appointment would be contrary to the rules.
11. It is the case of the petitioner that the inquiry was held from July 24, 2013 to July 26, 2013. In the inquiry, despite the petitioner‟s request, the procedure was not explained to him nor was he allowed representation through a legal counsel; neither Manoj Bahuguna was presented as a witness nor anyone from Weizmann was examined.
12. Mr. Sanjoy Ghose learned Counsel appearing on behalf of the petitioner has argued that the petitioner made a representation to the Inquiry Officer stating that neither were his letter dated July 24, 2013 dealt with in the record of proceedings nor was the procedure W.P.(C) 1540/2014 Page 6/36 explained to him. He also argued that the Inquiry Officer was also playing the role of the Presenting Officer and that the inquiry proceedings were not faithfully recorded and his objections were completely ignored under the pressure of the Presenting Officer. The petitioner‟s request to summon Manoj Bahuguna and the concerned employees of Weizmann was not accepted.
13. Mr. Ghose argued that the Inquiry Officer on August 06, 2013 responded to the representation of the petitioner by stating that he had already submitted his report to the Disciplinary Authority and that he has become functus officio. On the issue of the documents pertaining to Weizmann, the Inquiry Officer stated that the said documents are not relied upon during the inquiry and therefore the question of providing of the said correspondence did not arise; regarding verification of various notes, it was stated that the preliminary inquiry did not form a part of the charge. It was his submission that the petitioner had come to know that in his statement to the Vigilance Department of the respondent, given after May 01, 2013 Manoj Bahuguna had clearly exonerated the petitioner and absolved him of any wrong doing. This statement, despite request was not supplied to the petitioner. The Respondent only referred to the initial statement. It has been argued that the inquiry report had been prepared on the same day i.e. August 06, 2013 and therefore it exposed the bias of the Inquiry Officer for having rejected the representations by stating that he had already submitted his report. Despite the fact that the representation was made on July 29, 2013 and was being addressed only on August 06, 2013, i.e., the same day when the inquiry report hat been submitted. W.P.(C) 1540/2014 Page 7/36
14. It is the case of the petitioner that on August 14, 2013 a copy of the inquiry report dated August 06, 2013 was served upon the petitioner; wherein the Inquiry Officer had concluded that the petitioner was guilty of misconduct. The petitioner on August 21, 2013 made a detailed representation against the inquiry report. The Chief Operating Officer who was involved in the initial recording of the statement of the petitioner passed the order of removal on September 25, 2013. This order, Mr. Ghose has argued is perverse as it does not deal with the points and contentions raised by the petitioner in his representation dated August 21, 2013 and neither does it explain as to how the Chief Operating Officer is the Disciplinary Authority under the CDA Rules. The petitioner on October 10, 2013 sought a review against the removal order dated September 25, 2013. The Director of the respondent passed an order dated January 09, 2014 rejecting the appeal of the petitioner. The petitioner through this petition seeks to set aside the orders dated September 25, 2013 and January 09, 2014 („impugned orders‟ in short).
15. Mr. Ghose has argued that the impugned orders are liable to be quashed on the following grounds: -
I. The Inquiry Officer was appointed in violation of the
II. He had not explained the procedure to be adopted in the inquiry on the commencement of the inquiry proceedings; W.P.(C) 1540/2014 Page 8/36
III. The Inquiry Officer acted as a prosecutor and played the role of Presenting Officer from the very beginning of the inquiry proceedings;
IV. Even without the respondent leading any evidence, the Inquiry Officer went ahead and started cross-examining the petitioner.
V. The Inquiry Officer refused to take the letter wherein a request was made to allow the petitioner to be represented through an Advocate in the inquiry.
VI. On commencement of the inquiry proceedings, both the Inquiry Officer and the Presenting Officer started cross examining the petitioner, in order to get him to accept everything recorded in the proceeding, stating that otherwise the inquiry would be closed ex parte.
VII. The inquiry proceedings were written partly in Hindi and English, and partly in shorthand, which were signed by both the Inquiry Officer and the Presenting Officer.
VII. Inquiry Officer, despite agreeing to summon the witness desired by the petitioner, did not do so during the inquiry.
IX. The petitioner had written a letter to the Inquiry
Officer, requesting that he be allowed to summon two witnesses, but the Inquiry Officer claimed that the inquiry proceedings had concluded and that he had become functus officio. W.P.(C) 1540/2014 Page 9/36
X. The Presenting Officer deliberately avoided to examine the material witness in the inquiry who could have proved that the petitioner had been falsely implicated.
XI. The findings of the Inquiry Officer are completely perverse and biased and based on self-drawn conclusions without any evidence and application of mind, appreciation of evidence on record whatsoever.
XII. Going through the Articles of Charges and the imputation of charges, the petitioner had not violated Rule 4 (II), 5 (I) Rule 12(4) and consequently none of the alleged charges could be levelled against the petitioner.
XIII. The Disciplinary Authority as well as the Appellate
Authority failed to appreciate that even assuming, though not admitting that the charge of providing telephonic information about the fellow employee was proved, the penalty of removal of the petitioner, who had put in 15 years of service, with an exemplary track record, was disproportionate, unfair, unjust and discriminatory.
16. Mr. Ghose has argued that it is settled law that in a departmental inquiry, if the delinquent officer could reasonably apprehend that the Inquiry Officer was biased against him, the inquiry proceedings would stand vitiated. It has also been held that the Inquiry Officer should be a person with an open mind and not one who is either biased towards the person against whom action is sought to be taken or who has prejudged the issue. He placed reliance on the judgment in the case of C.S. Sharma vs. State of Uttar Pradesh (AIR 1961 All 45). W.P.(C) 1540/2014 Page 10/36
17. It was also argued by Mr. Ghose that the Court in exercise of its power of judicial review can interfere with the decision of the Disciplinary Authority and review, the decision of the Disciplinary Authority and Appellate Authority, if the punishment imposed is illogical, or suffers from procedural impropriety or shocks the conscience of the Court; in which case the Court can appropriately mould the relief, or even impose appropriate punishment with cogent reasons in support thereof. He places reliance on the following judgments of the Supreme Court wherein it was held that the Wednesbury principles should be applied to test the decision of the administrator. i. Union of India vs. G. Ganayutham (AIR 1997 SC 3387) ii. B.C. Chaturvedi vs. Union of India and Ors. (AIR 1996 SC 484) He seeks the reliefs as prayed for in the petition.
18. Mr. Dinesh Agnani learned Senior Advocate who appears with Mr. Inderjit Singh on behalf of the respondent has argued that the petitioner at the relevant time was working as an Officer (Forex) in the respondent company and dealing with the foreign exchange in its Tours and Travel Division. The petitioner failed to inform his seniors in the Company about an unauthorised transaction of US$ 17,000/- in March, 2013 which took place between Weizmann and Manoj Bahuguna also an officer of the Company and at that time posted at RITES, Gurgaon.
19. According to him, Manoj Bahuguna who was no way connected with FOREX business of the respondent, made another transaction of US$ 60,000/- in April, 2013 in connivance with the W.P.(C) 1540/2014 Page 11/36 petitioner. The petitioner has himself stated in paragraph 1.[1] of the petition that he, acting out of good faith, had telephonically confirmed the employment status of Manoj Bahuguna in the respondent company for 10 years, working at the Gurgaon RITES facility; and that the said employee had allegedly attempted to draw foreign exchange from a private third party. Mr. Agnani has pointed to the statement given by the petitioner on April 27, 2013 wherein the petitioner admitted his mistake, apologised and stated that he would not repeat the same in the future; this statement Mr. Agnani has argued is a voluntary admission of his mistake.
20. Mr. Agnani submitted that once the petitioner, on his own admitted his mistake and apologised for the same unconditionally, all the pleas of innocence and lack of involvement resorted to in the petition would be untenable and an attempt is now being made to resile from the admission. In this regard he has placed reliance on the judgement of the Supreme Court in the case of Marwar Gramin Bank v. Ram Pal Chouhan 2006 (109) FLR-1085. Additionally, the plea of the petitioner that he became aware of the transactions done by Manoj Bahuguna only on April 16, 2013 is falsified by his own statement on April 27, 2013. Mr. Agnani stated, even if it were to be assumed that the petitioner became aware of the transaction done by Manoj Bahuguna on April 16, 2013 only, the question is why the same wasn‟t brought to the notice of his superiors immediately on April 16, 2013 itself and why he alone went to the office of Weizmann on that day to sort the issues.
21. In this regard he has referred to paragraph 2.[6] of the writ petition to state that the petitioner was first approached by Manoj W.P.(C) 1540/2014 Page 12/36 Bahuguna on April 02, 2013. Therefore, it could be safely assumed that the petitioner knew that Manoj Bahuguna was indulging in foreign exchange dealings at least from the said date. Mr. Agnani submitted that the petitioner was colluding with Manoj Bahuguna in the illegal foreign exchange trade and willfully did not inform his seniors in the company about the same and that unless authorised by the Reserve Bank of India no one is allowed to trade in foreign exchange. The petitioner has filed the inquiry report in the case of Manoj Bahuguna in which the Inquiry Officer stated that foreign exchange transactions were done through the petitioner. In this regard Mr. Agnani has placed reliance on the judgment of the Supreme Court in the case of Union of India vs. P. Gunasekaran (2015) 2 SCC 610 to argue that the Court should not sit like a Court of Appeal in cases concerning disciplinary proceedings.
22. Mr. Agnani further relied on the judgement of S. P. Chengalvaraya Naidu (dead) by LRs vs. Jagannath (dead) by LRs AIR 1994 SC 853, wherein it was held that a party which knowingly misleads the court, is liable to be thrown out of the proceedings. He further argued that since the petitioner has approached the Court with unclean hands and having been involved in unauthorised trade along with Manoj Bahuguna in taking US$ 17,000/- + 60,000/- from Weizman, he is not entitled to any relief and the writ petition is liable to be dismissed. The averment in the rejoinder that, no loss was caused to the respondent has been denied and rebutted by Mr. Agnani by stating that the respondent suffered both in terms of business, reputation and goodwill. Mr. Agnani has further placed reliance on the following judgments:- W.P.(C) 1540/2014 Page 13/36 i. State Bank of Patiala vs. S. K. Sharma (AIR 1996 SC
1669) ii. Krishan Dev Puri vs. Union of India (1983 (47) FLR 201)
23. Having heard the learned Counsel for the parties, the issue which falls for consideration is whether the removal of the petitioner from the services of the respondent is justified.
24. The removal of the petitioner is pursuant to an action taken by the respondent under the Conduct, Discipline and Review Rules („CDR Rules‟, in short) by issuing a charge sheet and conducting proceedings through an Inquiry Officer. The allegations against the petitioner, who was working as an Officer (FE) are the following:- “ARTICLES OF CHARGES
01. Shri Sandeep Sharma while functioning as Officer [Forex] from 01.04.2011 to 17.04.2013 in T&T, Delhi Branch, in connivance with Shri Manoj Bahuguna, Officer [Travel-Presently under suspension] posted at RITES Office, Gurgaon, who was no way connected to FOREX business, allegedly made a transaction of US$ 60000/[United States Dollars Sixty Thousand Only] and failed to inform his Controlling Officer about the foreign exchange transaction executed by Shri Manoj Bahuguna of which he was also a party. He also failed to inform the Enquiry team during Preliminary Enquiry about the transaction of US$ 60000/[United States Dollars Sixty Thousand Only] which took place between Mr. Vivek of M/s Weizman and Shri Manoj Bahuguna. In doing so, he has been unable to maintain integrity and devotion to duty, thereby contravening the provisions of Rule 5(i) of CD&RR for Officers of BL thereby committing misconduct of Fraud or dishonesty in connection with the business of the Company, under Rules 26[i] of CDRR.
02. Shri Sandeep Sharma while functioning as Officer [Forex] in T&T, Delhi branch failed to inform his Controlling Officer the transaction of US$ 17000/[United W.P.(C) 1540/2014 Page 14/36 States Dollars Seventeen Thousand Only] which took place in March, 2013 between Mr. Vivek of M/s Weizman and Shri Manoj Bahuguna, Officer [Travel-Presently under suspension]. He has committed an act which is unbecoming of an Officer, thereby contravening the provision of Rule 4[ii] of CD&RR, which amounts to misconduct under Rule 26[xviii] of CD&RR.
03. Shri Sandeep Sharma while functioning as Officer [Forex] in T&T, Delhi branch, used his position in the Company to influence Mr. Vivek of M/s Weizman [who is a Vendor of the Company] by introducing Shri Manoj Bahuguna to M/s Weizman for personal gains. Shri Sandeep Sharma also failed to report information about dealing made by Shri Manoj Bahuguna with Mr. Vivek of M/s Weizman in contravention to the provision of Rule 4[ii], 12[4] of CD&RR and para 6 [six] of the Company's guidelines regarding day to day money changing transactions thereby committing misconduct under Rule 26[v] and 26[xxiii] of the CD&RR.”
25. In support of the aforesaid charges, the respondent had relied upon the following documents and the witnesses:- LIST OF DOCUMENTS [1] DOCUMENTS PERTAINING TO NON-COMPLIANCE OF COMPANY'S LAID DOWN PROCEDURE FOR PROCUREMENT OF FE STOCK [21 STATEMENT OF SHRI SANDEEP SHARMA [3] STATEMENT OF SHRI MANOJ BAHUGUNA LIST OF WITNESSES
1. MRS.
SANDHYA MALIK, AVP[TT]-NORTH,TT-DELHI
2. SHRI ANIL KUMAR GABA, SR. MANAGER[A&F]
3. SHRI V.B. SHARMA, MANAGER[A&Fl
4. SHRI MANOJ BAHUGUNA, OFFICER[TRAVEL] - PRESENTLY UNDER SUSPENSION
5. SHRI SANDIP DAS, AVP[A&F]-HO W.P.(C) 1540/2014 Page 15/36
26. Suffice to state, the Inquiry Officer, in his report has found the above charges against the petitioner as proved.
27. The first submission of Mr. Ghose was the very appointment of the Inquiry Officer Mr. A.K. Khullar on the ground that he was working in the respondent organization as a „Consultant’. In other words, he was not in the service of the respondent Company.
28. The respondent has contested the plea of Mr. Ghose by stating Rule 31(3) of the CDR Rules contemplates the inquiry shall be held by the Disciplinary Authority or by any other Officer or public servant nominated by the Disciplinary Authority. The explanation to the said rule states that a public servant may include serving or retired Government Officers of proven integrity or retired Judges. It appears Mr. A.K. Khullar was a retired employee, who had been appointed as Consultant with the designation of Chief Consultant (Tours). Being a retired officer, he was competent to act as an Inquiry Officer. In fact, I find, no objection, with regard to competency of Mr. A.K. Khullar to act as an Inquiry Officer was taken by the petitioner before the start of the inquiry proceedings or even during the same. He had submitted to the jurisdiction of the Inquiry Officer namely Mr. A.K. Khullar. In fact, he made communications with the Inquiry Officer with regard to supply of documents and also questioned the manner in which he held the proceedings as being in violation of the procedure. At no point of time, did he challenge the authority of the Inquiry Officer to conduct the proceedings. This plea of Mr. Ghose is an afterthought taken only in the writ petition. It is clear from the rule W.P.(C) 1540/2014 Page 16/36 that a retired Officer can also act as an Inquiry Officer. Hence, this plea is rejected.
29. The plea of Mr. Ghose was also that the petitioner was denied the permission to engage an Advocate to represent him in the proceedings. In this regard, I may reproduce, the relevant rule where a Charged Officer can take the assistance of a Legal Practitioner to represent him in the inquiry, as under: “(4)(i) The disciplinary Authority shall have the discretion to appoint an Officer, including a public servant as a Presenting-Officer on its behalf in any inquiry in which the Disciplinary Authority considers this desirable. In such cases, the charged officer may take the assistance of another officer of the Company, with the prior permission of the disciplinary authority, to be present at the inquiry to assist the charged officer.
(ii) However, if the Presenting Officer is a Legal
Practitioner, Law. Officer, Legal Advisor or a person with a Law degree to his credit the charged officer will have the right to take assistance of a Legal Practitioner from outside the organisation to be present at the inquiry to assist the charged officer. The cost of the outside If Legal Practitioner will be borne by the charged officer.”
30. That apart, I reproduce the proceedings held on July 24, 2013 wherein the request of the petitioner for engaging an Advocate was rejected in the following manner: “xxxx xxxx xxxx GM (HR) I want to make you aware about the rules of the company and in clause 31-B-4(i) CDRR it has been clearly, mentioned in which it is mentioned that if prosecuting officer is a legal practitioner, law officer, legal advisor or has got law degree then- permission can be given to him, provided consent is taken from the W.P.(C) 1540/2014 Page 17/36 competent officer. We are giving reply to you of this request”.
31. Even the communication dated August 06, 2013 states as under:- “Shri SandeepSharma Officer [Forex - Presently under suspension] A-29, Allahabad Bank Society Mayur Kunj Delhi-ll0096 Sub:- Departmental Enquiry Reference your letters dated 24.07.2013 on the above subject. This is to inform you that I have already submitted my report to the Disciplinary Authority and have, therefore, become functus officio. As regards your request for engagement of a lawyer to assist you in the enquiry, as stated above, the enquiry has already been over. Moreover I understand on the basis of the enquiries made that the Presenting Officer, Shri Sandip Das, is not a legally trained person. This was also explained to you on 24th July, 2013 and you were fully satisfied with the same. Regarding supply of documents relating to M/s Weizman Forex Ltd., no such document has been relied upon during the enquiry. Therefore, the question of supplying you the correspondence from Weizman does not arise. As regards verification of Forex notes done on 18.04.2013 by S/Shri Sandip Das- and K. Sen from HO, this is inform you that the same does not form part of the Articles of charges, therefore, the same is not relevant. The statement of Shri Manoj Bahuguna has already been supplied to you vide letter dated 06.06.2013. Since no reliance has been placed during the enquiry by the Presenting Officer on the preliminary enquiry report, the same is not relevant. W.P.(C) 1540/2014 Page 18/36 Your allegation that I have played the role of a Presenting Officer is incorrect and denied. In any case, as the enquiry is over, you are advised to make further correspondence, if any, with the Disciplinary Authority as I have further no role to play.” I agree with the justification given by the respondent to reject the request of the petitioner for engaging a legal practitioner. Hence, this plea of Mr. Ghose is rejected.
32. Now coming to the submission of Mr. Ghose that the conclusion drawn by the Inquiry Officer is without evidence and perverse; to appreciate this submission, it is necessary to state in brief, the allegations made against the petitioner, his stand on the allegations, the evidence recorded and the conclusion of the Inquiry Officer.
ALLEGATIONS AGAINST THE PETITIONER:-
33. Charge- 1 is primarily (a) The petitioner between April 01, 2011 to April 17, 2013 in connivance with Manoj Bahuguna, who was in no way connected with foreign exchange, allegedly made transaction of US$ 60,000/-; (b) He failed to inform his Controlling Officer about the transaction executed by Manoj Bahuguna of which he was also a party; (c) He failed to inform the inquiry team during preliminary inquiry about the transaction of US$ 60,000/between Vivek of Weizmann and Manoj Bahuguna. Charge-2 The petitioner failed to inform his Controlling Officer the transaction of US$ 17,000/-, which took place in March, 2013 between Vivek of Weizmann and Manoj Bahuguna. W.P.(C) 1540/2014 Page 19/36 Charge-3 (a) The petitioner used his position in the Company to influence Vivek of Weizmann by introducing Manoj Bahuguna to Weizmann for personal gains; (b) The petitioner also failed to report information about dealing made by Manoj Bahuguna with Vivek of Weizmann.
CASE OF THE PETITIONER:-
34. On April 17, 2013, for the first time, the petitioner informed his Controlling Officer by stating as under:- “Regarding the episode which took place unknowingly, I wish to submit as under for your kind consideration:- [1] On 2nd April, 2013, Shri Manoj Bahuguna, Officer [Travel] deployed at RITES Implant Office telephonically approached me for providing 5000 dollars for use of some RITES’ GM on credit basis, which was refused by me straightaway. [2] On the same day, he again called me to say that he has approached Weizmann for the dollars and requested to give positive response in case they contact me. After few hours, I received a call from Weizmann and they enquired about Shri Manoj Bahuguna. I confirmed to them verbally that he is a permanent employee of the Company and is currently posted at RITES to take care of travel requirements of their officials. No confirmation in writing was given by me to them. [3] On Friday, i.e. 12th April, 2013, Weizmann informed me over phone that Shri Manoj Bahuguna has taken 30000 dollars from them on credit basis. [4] On 16th April, 2013,[1] received a call from Weizmann informing that Shri Bahuguna is not lifting his mobile phone and requested me to get in touch with him and arrange for payment. I tried his mobile number continuously but the same was going on switched off. I W.P.(C) 1540/2014 Page 20/36 went to Weizmann then, they informed that they have already done one transaction on 2nd April, 2013 and payment against which has already been received by them from Shri Bahuguna. However, the transaction for the 30000 dollars which were handed over to Manoj between 5th and 8th April, 2013 is pending for want of payment. They also forwarded photocopies of 5 passports to me for expediting their payment. I clarified that Balmer Lawrie has no role to play since they have directly dealt with Manoj. [5] As you are kindly aware that I have been working as Officer [Foreign Exchange] in SBU TT-Delhi since 18.12.2007. Prior to this I have served more 10 years service to the Company on contractual basis and since the date of joining I have been handling foreign exchange activities very well. I am also responsible to oversee the foreign exchanges activities of SBU TT branches at other locations. During my 15 years service in the Company, I have not indulged in any unfair activities and have always provided best of my services to the Company. The intimation about Shri Bahuguna was given by me to Weizmann on good faith and innocently which I never thought of that it will happen in this way. It is confirmed that we have not provided any foreign currency to any of the officials of RITES in the past. I admit my mistake with deep regrets and sincerely apologize for the same. However, I ensure that I will be cautious and shall never repeat the same in future.”
35. On April 18, 2013 the petitioner‟s statement was also recorded in the following manner:- “Statement of Sh. Sandeep Sharma (Officer - Forex) recorded at New Delhi on 18.04.2013. Background note On 2nd April, 2013- Shri Manoj Bahuguna, Officer [Travel] deployed at RITES Implant Office W.P.(C) 1540/2014 Page 21/36 telephonically approached me for providing USD 5000/- for use of some RITES' GM on credit basis, which was refused by me straightaway. On the same day, he (Manoj Bahuguna) again called me to say that he has approached Weizmann for the dollars and requested to give positive response in case they contact me. After few hours, I received a call from Sh. Rajeev of M/s Weizmann and they enquired about Shri Manoj Bahuguna. I confirmed to them verbally that he is a permanent employee of the Company and is currently posted at RITES to take care of travel requirements of their officials. No confirmation in writing was given by me to them. On being asked about the reasons for entertaining a call from Shri Manoj Bahuguna, who is not related with Forex business and qualifying his credentials I say that considering his position as a Desk Officer at RITES office, BL does not have any Forex dealing relationship with RITES. Shri Manoj Bahuguna had also requested me to give positive response about him to which I informed that Sh. Manoj Bahuguna is a permanent employee and is working for last 10 years. Q[1]. How is your personal relationship with Shri Manoj Bahuguna? Ans. I do not have much interaction with Shri Manoj Bahuguna. Q[2]. How did you come to know about deal taken directly by Sh. Manoj Bahuguna? Ans: This fact was told to me on 16.04.2013 over the telephone by Sh. Rajeev of M/s Weizmann about raising the bill for USD 30000 delivered to Sh. Manoj Bahuguna. Rather I was surprised that M/s Weizmann were proposing to raise Invoice in favour of M/s balmer Lawrie for payment against USD 30000/purportedly delivered to M/s Balmer Lawrie. I immediately rushed to their office and stopped the raising of Invoice as we had not indented any USD. W.P.(C) 1540/2014 Page 22/36 Then only I cam to know that Sh. Vivek of Weizmann had delivered USD 30000/- on 12.04.2013 to Sh. Manoj Bahuguna through some outside source. Sh. Manoj had given photocopies of 5 passports to Sh. Vivek (copy enclosed). Then only I came to know that one deal involving of USD 30000/- was done between Sh. Vivek of Weizmann and Sh. Manoj Bahuguna, payment against this deal was settled in a scrupulous manner. Thereafter, I came to know that Sh. Manoj has given another request for USD 30000/- with Sh. Vivek of Weizmann between 5.04.2013 and 8.04.2013. The payment of this transaction was not made by Sh. Manoj. M/s Weizmann were of the opinion that this amount is to be billed to M/s Balmer Lawrie & Co. Ltd. which was denied by me. as there was no indent for foreign exchange from our end during this period. Q[3]. How did you come to know of disappearance of Sh. Manoj Bahuguna? Ans: On 16 April, 2013, I received a call from Sh. Vivek of Weizmann and informed that Shri Bahuguna is not lifting his mobile phone and requested me to get in touch with him. I tried his mobile number continuously but the same was in switched off mode. Then I received a call from Mr. Rajeev of M/s Weizmann asking to raise a bill for USD 30000/- to which I asked the legitimacy of such action and immediately rushed to their office and sorted out the issue across the table. Only then I came to know that this deal has been concluded by Sh. Manoj and Sh. Vivek of M/s Weizmann. There I was informed by Sh.Vivek of Weizmann that he has already done one transaction on 2nd April, 2013 and payment against which has already been received by them from Shri Bahuguna. However, the transaction for the USD 30000/- which were handed over to Sh. Manoj between 5th & 8th April, 2013 was pending for want of payment. He also provided me photocopies of 5 passports against which purchase of foreign exchange was manipulated by Sh. Manoj Bahuguna. I clarified that W.P.(C) 1540/2014 Page 23/36 Balmer Lawrie has no role to play since he has directly dealt with Sh. Manoj Bahuguna. Q[4]. Do you have any other thing to say on this issue? Ans: I would like to inform that no bill shall be raised by M/s Weizmann on the transaction discussed above and M/s Balmer Lawrie is not involved in any way.”
36. I may state here that the statement of Manoj Bahuguna was also recorded on May 01, 2013 when Manoj Bahuguna has stated as under:- “I, Manoj Bahuguna, working in Balmer Lawrie &Co. Ltd. had borrowed from Shri Sandeep Sharma 60,000 US dollars which I undertook to refund to Shri Sandeep Sharma on 18.4.2013. But I could not return the same and due to frustration I left my house. But I will try to refund the said amount by June, 2013. On 12.4.2013, I had received Rs.1,64,000 in cash in office which I could deposit in the office and it remained with me. I came on 30.4.2013 at about 8.00 PM and for this reason, I undertake to deposit the said amount on 2.5.2013.”
37. The above reveals that Manoj Bahuguna has stated that he had taken US$ 60,000/- from the petitioner. He has not mentioned the date, on which it was taken on credit. Though, a copy of the statement of Manoj Bahuguna was a relied upon document by the respondent in the proceedings and given to the petitioner, but he was not summoned / produced in the proceedings despite being a named witness.
38. Between July 24, 2013 to July 26, 2013, (as per the proceedings of the Inquiry produced) the oral evidence was recorded in the inquiry proceedings when the petitioner was cross examined by the Presenting Officer. Even the Inquiry Officer had W.P.(C) 1540/2014 Page 24/36 put questions to the petitioner. I find, the Inquiry Officer had put questions to witness Sandhya Malik. It appears, no other witness was produced by the respondent in the proceedings.
39. I have gone through the cross examination of the petitioner. He has disagreed with the suggestion, that Manoj Bhauguna was active outside the responsibilities given to him by the respondent Company. He denied that on April 02, 2013, (when he confirmed to Weizmann that Manoj Bahuguna is a permanent employee of the respondent organisation) Manoj Bahuguna was wrongfully utilizing the name of Balmer Lawrie (the respondent) to enter into a deal for foreign currency. He also denied that he helped him by identifying him as a permanent employee of Balmer Lawrie (the respondent herein). He denied that neither of the two incidents dated April 02, 2013 and April 12, 2013 as given in his statement were reported to the superiors. He denied that he concealed facts about wrongful foreign exchange transaction executed by Manoj Bahuguna and he denied being a party to the transaction.
40. Regarding the transaction of April 12, 2013, the petitioner stated that he came to know about the same on April 16, 2013 on phone. On that day, he went to Weizmann and told them that Manoj Bahuguna is not doing the transaction on behalf of Balmer Lawrie (the respondent herein). He informed his superiors about the same. He stated the date of April 12, 2013 in his statement should be read as April 16, 2013. The change of date has not been contested by the Presenting Officer. He also stated that on April 16, 2013, before he went to Weizmann, he informed one colleague who was working with him in the office. He told Sandhya Malik and W.P.(C) 1540/2014 Page 25/36 COO(TT) that Manoj Bahuguna has done the transaction. He stated that he had gone to Weizmann because Manoj Bahuguna had told them that payment will be done by Balmer Lawrie (the respondent herein). He had gone to the office of Weizmann to clarify that Balmer Lawrie has nothing to do with the said transaction.
41. I note, during the proceedings, Sandhya Malik had also appeared as witness. In her statement, she stated that DIR (SB) had called her, who wanted to know everything about the transaction that had taken place on that day. She told him that she would ask the petitioner. She stated that after reaching the office she contacted the petitioner on intercom who told her that the money belonged to Balmer Lawrie (the respondent herein) and stock has been used. After the telephonic conversation with the petitioner, she informed DIR (SB) that the money belonged to Balmer Lawrie. She also, in her statement, confirmed that the amount was US$ 60,000/-.
42. The petitioner has also in his statement referred to the fact that he had received a call on the intercom from Sandhya Malik wherein he informed her that Weizmann had stated that this money belonged to the stock of Balmer Lawrie (the respondent herein). After hearing this information, she disconnected the call. The petitioner has also stated that the stock of Balmer Lawrie, i.e., foreign exchange and cash in hand was verified by Anil Gaba and V.B. Sharma, which tallied completely. He also stated that the order is placed only after taking the approval.
43. Insofar as the statement of Manoj Bahuguna is concerned, the petitioner has denied the same. He also stated that Manoj W.P.(C) 1540/2014 Page 26/36 Bahuguna should be called to the inquiry proceedings so that everything becomes clear. I may, at this stage reproduce the findings of the Inquiry Officer on each of the charge in the following manner:- “FINDINGS Charge No. 1: After analysing the documentary evidences and outcome of the cross examination & statements of DE & MW which took place during the enquiry proceedings, it revealed that Shri Sandeep Sharma is the party of FE transactions executed between Shri Manoj Bahuguna &Weizman, which was disclosed by him only when he was unable to contact Shri Manoj Bahuguna who was missing and absenting himself for quite some time. Therefore charge no 1of executing Foreign Exchange transactions and not informing the controlling officer stands proved. He has therefore contravening the provision of rule 5 (1) of CD&RR for officers of Balmer Lawrie thereby committing misconduct of fraud or dishonesty in connection with the business of the company, under Rules 26[i] of CDRR. Hence in my observation, the Charge No. 1 levelled against delinquent employee, Shri Sandeep Sharma vide Memorandum Ref, Tvl/SS dated 18.05.2013 issued by the COO [TT], is proved. Charge No. 2: After analyzing the document on records and statement of witness it has been established that Shri Sandip Sharma failed to inform his controlling officer the transaction is USD 17000/- which took place in March 2013 between Mr. Vivek of M/s. Weizman and Mr. Manoj Bahuguna, officer (Travel Presently Under suspension). He has committed an act unbecoming of officer therefore by contravening provisions of Rule 4[ii] of CD&RR, which amount to misconduct under Rule 26[xviii] of CD&RR. W.P.(C) 1540/2014 Page 27/36 Charge No. 3: After analyzing the document on records, statement of witnesses and clarification Mr. Sandip Sharma, it has been proved that Mr. Sandip Sharma introduced / vouched for Shri Manoj Bahuguna to Mr. Vivek representative of M/s Weizman and did not report the information with his controlling officer thereby contravening the provision of Rule 4(II), 12(4) of CD&RR thereby committed misconduct under Rule 26(V) and 26(XVIII) of CD&RR.”
44. The first limb of Charge-1 primarily states that the petitioner has made transaction of US$ 60,000/- with Manoj Bahuguna and he has failed to inform his superiors about the said transaction.
45. The findings of the Inquiry Officer do not even refer to the amount involved in the transaction. The findings also do not refer to the evidence (if any) both documentary and oral, in order to come to such a conclusion. The only evidence on record with regard to the transaction of US$ 60,000/- is the statement made by Manoj Bahuguna on May 01, 2013, a copy of which was given to the petitioner. The fact that Manoj Bahuguna, though named as a witness, was not called to the witness box, his statement cannot be read against the petitioner; who has denied his statement and had asked the Inquiry Officer for the presence of Manoj Bahuguna for his cross examination, which was not acceded to. Rather the Inquiry Officer stated, when a statement of Manoj Bahuguna is on record, what is the need of personal appearance of Manoj Bahuguna. This observation is untenable. The respondent was required to produce Manoj Bahuguna. In his absence, his statement cannot be read against the petitioner. Even the statement of W.P.(C) 1540/2014 Page 28/36 Sandhya Malik regarding US$ 60,000/- is hearsay, based on her conversation with COO(TT). That apart, it has come on record that foreign exchange and cash in hand was verified by Anil Gaba and V.B. Sharma, which had tallied completely. This position has not been controverted. It appears both Anil Gaba and V.B. Sharma were not produced in the proceedings to establish whether the stock of Balmer Lawrie, on checking had tallied or not. The findings of the Inquiry Officer on this charge cannot be sustained.
46. The second limb of the charge No. 1 is that the petitioner had failed to inform about the foreign exchange transaction executed by Manoj Bahuguna to which he was a party. Suffice to state, the evidence on record including the statements of the petitioner dated April 17, 2013 and April 18, 2013, it is clear from the same that the petitioner had come to know about the transaction of US$ 60,000/- / US$ 30,000/- only on April 16, 2013 when Rajiv from Weizmann had called the petitioner and informed him that Weizmann is proposing to raise invoice in favour of Balmer Lawrie (the respondent herein) as the amount of US$ 30,000/- was purportedly delivered to Balmer Lawrie (the respondent herein). It has come on record that the petitioner on April 16, 2013 went to the office of Weizmann when the fact of transaction of US$ 30,000/- (between April 05, 2013 and April 08, 2013) and transaction of US$ 30,000/- (on April 12, 2013) had come to the petitioner‟s notice through Weizmann. It has also come on record that the petitioner had informed Sandhya Malik and COO(TT) about the transaction and also the fact that it was not a Balmer Lawrie transaction. So, it follows that the date of knowledge of the W.P.(C) 1540/2014 Page 29/36 petitioner regarding US$ 60,000/- between Weizmann and Manoj Bahuguna was April 16, 2013 and it has also come on record that the petitioner had informed Sandhya Malik and COO(TT) on April 17, 2013. i.e., the very next day. It is not a case that he did not inform Sandhya Malik / COO(TT). There is nothing on record to show that the petitioner was aware of the transaction of US$ 60,000/- before April 16, 2013. Even the date of April 12, 2013, in the statement of the Petitioner, was later clarified as April 16, 2013. Hence, this finding of the Inquiry Officer on this limb of the charge is also not sustainable.
47. There is a third limb of the charge that the petitioner had not informed the inquiry team during preliminary inquiry about the transaction of US$ 60,000/- between Vivek of Weizmann and Manoj Bahuguna. This limb of the charge is also not proved as, it is clear from the statement of the petitioner dated April 17, 2013 to COO(TT) and also his statement recorded on April 18, 2013, that he had come to know about the transaction of US$ 60,000/between Weizmann and Manoj Bahuguna, when he visited Weizmann on April 16, 2013. The statement of April 18, 2013 was during preliminary inquiry. Hence, it cannot be said that the petitioner had, during the preliminary inquiry not informed the inquiry team about the transaction of US$ 60,000/-. Unfortunately, the Inquiry Officer, except stating that the charge has been proved, has not stated as to how, on what evidence, the charge has been proved. Hence, the finding is perverse and unsustainable.
48. Even the finding of the Inquiry Officer on Charge No.2 is perverse. The charge is that the petitioner has failed to inform his W.P.(C) 1540/2014 Page 30/36 controlling officer the transaction of US$ 17,000/-, which took place in March 2013 between Weizmann and Manoj Bahuguna. The imputation to the charges does not narrate the facts and the evidence to sustain the charge. There is no document on record to show that the transaction of US$ 17,000/- had taken place between Weizmann and Manoj Bahuguna in the month of March 2013 of which the petitioner was aware of and had concealed the same from his superiors. As per the petitioner‟s own statement / stand, it was only on April 02, 2013 that Manoj Bahuguna had approached the petitioner for the first time for providing a credit of US$ 5,000/- for the use of RITES GM and thereafter on April 16, 2013, when, the petitioner went to Weizmann, he came to know about the transaction of US$ 60,000/- and not US$ 17,000/-. Insofar as the plea that, the petitioner was also party to the transaction because he had interacted with Vivek for delivery of foreign exchange to Manoj Bahuguna is concerned, the said plea has no documentary support, neither Vivek nor Manoj Bahuguna have substantiated the transaction. Vivek was not a witness in the proceedings and Manoj Bahuguna though named was not produced. Even though, there is no evidence, the Inquiry Officer has simply, without narrating / referring to the evidence (if any) has held that the charge as proved. Merely saying that the charge is proved without referring to and discussing the evidence makes the conclusion perverse. The finding on this charge is unsustainable.
49. Insofar as Charge No.3 is concerned, the same states that the petitioner used his position in the Company to influence Vivek of Weizmann by introducing Manoj Bahuguna to Weizmann for W.P.(C) 1540/2014 Page 31/36 personal gains and he has failed to report information about the dealing made by Manoj Bahuguna with Vivek of Weizmann. The justification given by Mr. Ghose is that the petitioner has acted in good faith and innocently confirmed the employment status of an employee of the respondent Company working for the last 10 years. In other words, the petitioner has acted out of common professional courtesy, ignorant of the actual intention of the said employee. There appears to be some justification for the petitioner to confirm to Weizmann about the employment status of Manoj Bahuguna being in respondent Company but surely when the petitioner had come to know about Manoj Bahuguna approaching for foreign exchange on April 02, 2013, he was required to inform the superiors about foreign exchange transaction by Manoj Bahuguna with Weizmann that too when Manoj Bahuguna was not dealing with the foreign exchange on behalf of Balmer Lawrie (the respondent herein). He should have been cautions that an employee dealing with foreign exchange, is dealing / acting in contravention to rules and as such prejudicial to the interests of the company. To that extent, the charge that he failed to inform about the dealing made by Manoj Bahuguna with Vivek of Weizmann was required to be informed to his superiors, stands proved on the basis of the statements / stand of the petitioner.
50. The plea of Mr. Agnani that the petitioner has on April 27, 2013 admitted his mistake on his own and having apologized for the same, the impugned action is justified. This plea is unmerited. The petitioner in his statement of April 27, 2013 has only stated “I admit my mistake with deep regrets and sincerely apologize for the W.P.(C) 1540/2014 Page 32/36 same. However, I ensure that I will be cautious and shall never repeat the same in future.” This statement of the petitioner has to be understood to mean, he accepts his mistake, i.e., of confirming to Weizmann that Manoj Bahuguna is a permanent employee of the respondent and not that he was party to foreign exchange transactions with him. The judgment of the Supreme Court Marwar Gramin Bank (supra) and S.P. Chengalvaraya Naidu (supra) on which reliance is placed by Mr. Agnani have no applicability in the facts of this case and hence are distinguishable.
51. The plea of Mr. Agnani, when the petitioner had come to know that Manoj Bahuguna was dealing with foreign exchange on April 16, 2013, he did not inform his superiors on the same day, as such the charge is proved. It is the case of the petitioner as noted above, on April 16, 2013, when he went to Weizmann, he came to know about the transactions of Manoj Bahuguna in foreign exchange; including the transaction of US$ 60,000/-. The justification of the petitioner was, on that day he was on fast because of Navratra and it was 8 pm in the night and therefore on the next day (April 17, 2013 in morning) he informed Sandhya Malik and COO (TT) that it was not a Balmer Lawrie transaction. The above shows, justification for the petitioner to inform his superiors about the transactions immediately on coming to know of the same the previous day.
52. Insofar as the plea of Mr.Agnani by relying on the statement of Manoj Bahuguna that, Manoj Bahuguna has stated that foreign exchange transactions were done through the petitioner is concerned, the same is without merit as Manoj Bahuguna‟s W.P.(C) 1540/2014 Page 33/36 statement cannot be read against petitioner, when he has not been produced in the inquiry proceedings, to enable the petitioner to cross examine him. The judgment in the case of Union of India (supra) relied upon by Mr. Agnani is not appliable in the facts of this case and in view of my conclusion above. Mr. Agnani, who has also relied upon the judgment in State Bank of Patiala (supra) and Krishan Dev Puri (supra) have no applicability in view of my conclusion above, based on the settled position of law.
53. I am conscious of the position of law that a Court cannot interfere with the findings of fact based on evidence and substitute the same with its own findings. It is not such a case here. The Supreme Court in BC Chaturvedi (supra) has held that the Court may interfere where, the authority held the proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or findings reached by the Disciplinary Authority is based on no evidence.
54. So, my findings on the report of the Inquiry Officer is in accordance with the law laid down by the Supreme Court except a part of charge 3, which I have held as proved.
55. The above position of law is that, since the inquiry proceedings are a quasi-judicial proceeding the Inquiry Officer is required to record reasons in support of his conclusion which will operate as a valid safeguard against any possible arbitrary exercise of quasi-judicial or administrative power. In Roop Singh Negi vs. PNB 2009 (1) SCC (L&S) 398 the Supreme Court held that the departmental proceedings are a quasi-judicial proceeding and the W.P.(C) 1540/2014 Page 34/36 Inquiry Officer performs quasi-judicial functions and has a duty to arrive at a finding, after taking into consideration the materials brought on record by the parties. The Inquiry Officer should appreciate the evidence and the conclusions should be based on evidence. The Inquiry Officer‟s report if is based on surmises and conjectures, the same cannot be sustained. Suspicion howsoever high cannot be a substitute for legal proof.
56. Unfortunately, the Inquiry Officer has abdicated his responsibility by not discussing the evidence (if any) on record before holding the charges as proved.
57. That apart, I find the Inquiry Officer has not followed the prescribed procedure while recording the evidence inasmuch as after the issuance of the chargesheet and seeking reply from the charged officer, it is the management which leads the evidence by producing its evidence both, i.e., the documents and its witnesses who would be subjected to cross examination by the charged officer. It is after the evidence of the management is recorded that the charged officer produces his / her documents and witnesses sought to be relied upon. Unfortunately, in the case at hand, I find the Presenting Officer without recording the statement of management witnesses proceeded to cross examine the petitioner. While cross examining the petitioner, he puts questions to the management witness namely Sandhya Malik. That apart the proceedings are also recorded in English, Hindi and also in shorthand which cannot be deciphered. Moreover, I find that the Review Petition filed by the petitioner has been rejected without considering the grounds raised by the petitioner. The law is well W.P.(C) 1540/2014 Page 35/36 settled in this regard, that the Revisional/ Appellate Authority, (the Reviewing Authority in this case) is required to deal with the grounds raised in the petition under consideration or at least give some reasons while confirming the order of Disciplinary Authority, which shows application of mind on the part of the said authority. Hence the order of the Reviewing Authority dated January 09, 2014 being bereft of reasoning is also unsustainable. In this regard, I may refer to the judgment of the Supreme Court in Divisional Forest Officer, Kothagudem and Ors. vs. Madhusudhan Rao, (2008) 3 SCC 469, wherein the Court held as under:
58. The question which now remains is, what should be the relief. Having held that the charges 1, 2 and 3 in part have not been W.P.(C) 1540/2014 Page 36/36 proved and also being conscious of the position of law that this Court in exercise of its power under Article 226 of the Constitution, cannot substitute the penalty imposed; and the Disciplinary Authority has to consider the partly proven charge against the petitioner for passing a final order, the matter is remanded back to the Disciplinary Authority. This Court quashes the impugned orders dated September 25, 2013 and January 09, 2014, with a direction to the Disciplinary Authority to pass a fresh order on the basis, that a part of charge 3 has been proved against the petitioner. The said order shall relate back to September 25, 2013 when the earlier order of removal was passed. Based on the order so directed to be passed, the Disciplinary Authority shall take further action as per law / rules. If the petitioner is aggrieved by any part of the order so directed to be passed, he is at liberty challenge the same in accordance with law. The above action shall be complied, within eight weeks from today.
59. The Petition is disposed of. No costs.
V. KAMESWAR RAO, J