B.P.DAS, J & B.P.RAY, J. W.P.( C) NO.10004 OF 2004 (Decided on 17.09.2010) K.RAJENDRAMANY ………. Petitioner. .Vrs. UNION OF INDIA & ANR. ……….. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.311 (2). For Petitioner - Mr. U.K.Nanda. For Opp.Parties – Senior Standing Counsel (Central Government)(for O.P.No.1) Mr. B.Das Mohapatra (for O.P.No.2) B.P. RAY, J. This writ application has been filed under Articles 226 & 227 of the Constitution of India assailing the order dated 9.7.2004 passed by the Commerce Secretary & Appellate Authority, Government of India, Ministry of Commerce & Industr6y confirming the order of punishment dated 27.8.2003 passed by the Disciplinary Authority in a disciplinary proceeding initiated the petitioner. 2. The case of the petitioner in brief is that while petitioner was working as Assistant Director in Marine Products Export Development Authority, a disciplinary proceeding was initiated against the petitioner by issuing a memorandum of charges dated 24.9.1999. Though the memorandum of charges contained six charges, the petitioner was found guilty in respect of four charges. On the basis of such finding recorded by the Enquiry Officer the petitioner was found guilty in respect of charge Nos. 1,2,5 and 6. The Disciplinary Authority-opp.party No.2 by the impugned order under Annexure-1 dated 27.8.2003 imposed punishment of reduction in rank. Thus, the petitioner was imposed punishment of reduction in rank from the grade of Assistant Director to the grade of Junior Technical Officer (Export Promotion) until he was found fit after a period of three years from the date on which the said order takes effect. However, it is directed that the impugned punishment of reduction in rank will come into force with effect from 1.10.2003 and this was so done so as to enable the petitioner to file an appeal before the appellate authority. Challenging the punishment so imposed by the Disciplinary Authority, the petitioner has preferred an appeal which came to be rejected by order dated 9.7.2004 under Annexure-2. Since the order of punishment dated 27.8.2003 was kept in abeyance, the said order was given effect to after disposal of the appeal. These orders passed by the Disciplinary Authority as well as the appellate authority are impugned in this writ petition. 3. The Disciplinary Authority has filed a counter affidavit justifying the punishment imposed. It is stated in the counter affidavit that out of six charges, charge Nos. 3 and 4 could not be proved and for the residual charges, namely, charge nos. 1,2,5 and 6, the Disciplinary Authority had imposed the punishment of reduction in rank. It is further stated in the counter affidavit that the punishment so imposed was commensurate with keeping in view the nature and the extent of misconduct proved in course of the enquiry. It is also stated in the counter affidavit that the enquiry having been conducted in consonance with the principle of natural justice and there being no procedural lapses or violation, the impugned order of punishment should not be interfered with. 4. The petitioner has filed an affidavit in reply to the counter affidavit filed by the Disciplinary Authority. In the said reply affidavit, the petitioner has brought on record the report of enquiry officer apart from some order documents. We have heard learned counsel for the petitioner, learned counsel appearing for opposite parties. We have also perused the pleading of the parties and the materials available on record. It appears from the record that the order of punishment of reduction in rank was given effect to on 20.8.2004 and after completion of three years, i.e. in the month of March, 2008, the petitioner was restored to the former post. 5. The following charges were framed against the petitioner :- “1. Shri K.Rajendramany, while working as Extension Officer, SRO, Tuticorin, was permitted in June 1992 to leave the country to visit Singapore “to see his ailing cousin brother”. But after spending three days in Singapore he visited Bangkok for 2 days and Hongkong for 3 days without permission from the Authority or without even informing the Authority. (2) Shri Rajendramany, Asst. Director, Tuticorin visited Hongkong and Singapore in February 1994 and Singapore again in June 1996 without seeking and obtaining the permission of the Competent Authority (Chairman,MPEDA) although he was well aware that such permission was necessary. (3) For the visit the Hongkong and Singapore in February 1994, he had applied for Casual Leave for 5 days from 3.2.1994. This was also granted. But he left the country on 1.2.1994 itself. He was thus unauthorisedly absent on the 1st and 2nd February 1994. (4) For the purchase of his car, he took a personal loan (Rs.50,000/-) from one Shri C. P Azaria Samuel Raj, Mg. Director, Packer Seafoods(P) ltd., with whom he had official dealings. For this, he did not obtain the approval of the competent Authority, This conduct is also unbecoming of an officer of the Authority. 5. For the visit to Hongkong in February 1994, the Indian Rupees equivalent of US $ 1000 and the air f are were advanced by Shri Samuel Raj, Managing Director of M/s. Packer Seafoord (P) ltd. It has also been admitted that these amounts were repaid later. Shri Rajendramany has thus had financial transaction with a person with whom he had official dealings, without obtaining necessary approval of the Competent Authority. (6) That he proceeded to Hongkong along with the Seafood Processor with whom he had official dealings. He took the same fight. Both of them drew Travellers Cheque USD 1000/- each from the same Bank on the same day. This conduct is unbecoming of an officer of the Authority.” On conclusion of the enquiry, the Enquiry Officer held that charge nos. 3 and 4 were not proved. Thus, the Enquiry Officer while exonerating the petitioner from charge Nos. 3 and 4 has held the petitioner guilty in respect of charge Nos. 1,2,5 and 6. A copy of the enquiry report was supplied to the petitioner where after the impugned order of punishment under Annexure-1 was passed imposing punishment of reduction in rank. 2 The Disciplinary Authority while passing the impugned order of punishment has come to the conclusion that charge nos.1 and 2 taken in isolation were not grave charges, but it appears comparatively serious when read with charge Nos. 5 and 6. 6. The Disciplinary Authority appears to have passed into service the finding with regard to charge nos. 5 & 6. As such, it has become necessary to have a cursory look to the finding recorded by the Enquiry Officer in his report under Annexure-4. The substratum of the allegations in charge no.5 is that the petitioner had financial transaction with a person with whom there were official dealings and such financial transaction was without obtaining necessary of the competent authority. The Enquiry Officer in his report has held that although the petitioner and P.W.3 went to Hung Kong together in February, 1994 and P.W.3 advanced Air Ticket as well as foreign exchange for the petitioner has not been proved. The Enquiry Officer has also held that the Department has failed to prove that the petitioner was demanding money from P.W.3 The Enquiry Officer in his report has also further held that P.W.3 paid the foreign exchange for the petitioner and further the petitioner paid for the ticket of P.W.3 was not convincing. The Enquiry Officer having held thus, the finding that the petitioner did not obtain sanction of the competent authority for about transaction is contrary to the materials on record. Consequently, the finding reached in the enquiry report that charge no 5 was proved is unsustainable in view of the finding arrived at by the Enquiry Officer which we have noticed. Reverting to the allegation in charge no6, the Enquiry Officer has held that allegation in charge no.6 is linked with allegation in charge no.5. We have carefully perused the finding of the Enquiry Officer who has come to an abrupt conclusion that charge no.6 was proved which is linked to charge no.5. The same analogy also applies to charge no.6 and consequently charge no.6 was held to be proved. We have already held that the finding of the Enquiry Officer with regard to the charge no.5 is perverse and contrary to the materials on record. On the own showing of the department that charge nos.5 & 6 are interlinked and once charge no.5 is proved, the allegation in charge no.6 is automatically proved. Since we have already held that finding in charge no.5 is unsustainable, the same being interlinked to charge no.6, we are also of the considered opinion that the finding in regard to charge no.6 is also equally unsustainable since both the charges are interlinked, inasmuch as, in the event one charge fails, the other charge automatically fails. This conclusion has been arrived at by us on perusal of the findings recorded by the Enquiry Officer himself and we have not pressed into service any other material to arrive at such conclusion. It may be indicated here that we have not re-appreciated or re-evaluated the evidence on record, since we are conscious of the limitation of a writ court while exercising its power under Articles 226 & 227 of the Constitution of India. Law is well settled that High Court while exercising its power under Articles 226 & 227 of the Constitution of India can not act like an appellate authority so as to appreciate or re-evaluate the materials on record. However, a High Court can examine the propriety of the order passed by the Domestic Tribunal, if the findings are perverse and based upon no material on record and the finding has been reached in utter violation of principles of nature justice. 7. On an analysis of the enquiry report, we have come to the conclusion that the finding reached in the enquiry report holding the petitioner guilty in respect of charge nos.5 & 6 are perverse and unsustainable. The residual question remains as to whether on the basis of findings reached in respect of charge nos.1 & 2, the impugned punishment of reduction in rank could be imposed. It is not necessary to examine the correctness of the findings with 3 regard to charge nows.1 & 2, in view of the fact that the Disciplinary Authority himself has recorded the finding in the order under Annexure-1 that the allegations in charge nos.1 & 2 were not serious, Obviously, therefore, the Disciplinary Authority did not consider the findings in respect of charge nos.1 & 2 to be so grave warranting imposition of punishment of reduction in rank. The Disciplinary Authority appears to be tempted to impose punishment of reduction in rank considering the finding in charge nos.5 & 6 read with the findings in respect of charge nos.1 & 2. Since we have held that the finding recorded in respect of charge nos.5 & 6 are unsustainable, in our considered view, the order imposing punishment of reduction in rank is also unsustainable and is liable to quashed, which we accordingly direct. 8. For the foregoing reasons, the impugned order of punishment imposing punishment of reduction in rank under Annexure-1 is quashed and the petitioner is entitled to all consequential benefits. The writ petition is accordingly allowed, Writ petition allowed. 4