JUDGMENT Sureshwar Thakur, J. The learned counsel for the petitioner, has, fairly submitted before this Court that she would not be launching an omnibus frontal attack qua the tenacity or the validity of the impugned order, rendered by the respondent, comprised, in, Annexure P-9 rather, only a limited assault to the extent hereinafter. In view of the said statement of the learned counsel for the petitioner, it, is wholly unnecessary for this Court to delve into or dwell upon or adjudicate qua the legality of and propriety of the procedure adopted by the disciplinary authority, preceding the rendition of the Inquiry report or even qua the legality of the findings recorded by the Inquiry Officer in his Inquiry Report which came to be relied upon by the disciplinary authority, in, rendering the impugned annexure. The limited assault of the learned counsel for the petitioner, is, qua the impugned order being visited with an illegality or vitiated in as much, as, given the fact as comprised in Annexure–I of the petitioner having during the year 2009 committed acts of misconduct enumerated therein, yet the respondent while rendering the impugned order, as apparent on a perusal of page 188 of the paper book, having come to be, rather also influenced by the purported misconduct of the delinquent/petitioner, pertaining to the year 2010. A circumspect reading of the impugned annexure bears out the submission of the learned counsel for the petitioner. She proceeds to submit that since, hence, the aforesaid purported misconduct of the petitioner/delinquent did not form part of the memorandum of charge, it, ought not to have either weighed with or swayed the respondent, to, have proceeded, to on its strength conclude that given the gravity of the indiscipline by the petitioner, his, retention or continuation in service would, not, be in public interest. Obviously, the respondent ought not, to, have been swayed by the fact of the petitioner having purportedly mis-conducted himself in the year 2010, especially when the said purported misconduct was not a part of the imputations of misconduct leveled against the petitioner nor was inquired into, as such, when the aforesaid misconduct was foreign or alien to the memorandum of charge, it, was not required to be also adverted to, by the respondent, as, untenably done in forming the conclusion, that, his retention in service, is, not in public interest. The said material though material extraneous to or foreign to the imputations of misconduct comprised in Annexure I, hence to, the considered mind of this Court it having been relied upon by the respondent for visiting the petitioner with a major penalty of compulsory retirement, does vitiate the impugned order with the vice of non-application of mind. More so, when it appears to be the overwhelming material which swayed the respondent to impose a major penalty. Therefore, it is ordered that the respondent shall thoroughly reapply its mind to the available material on record, shall exclude the aforesaid foreign/alien material and thereupon shall impose such penalty as deemed fit upon the petitioner in commensuration with the gravity of misconduct. Accordingly, annexure P-9 is quashed and the matter, is, remanded to the respondent, for, imposing a fresh penalty upon the delinquent/petitioner. In rendering the aforesaid direction and making the above observations that where the disciplinary authority while imposing penalty takes into consideration excludable material or alien material to the memorandum of charge, the, order imposing penalty stands vitiated and it is open to the Court to order for the setting aside of the penalty on account of, it, hence being vitiated and thereupon direct the disciplinary authority to reapply its mind qua the imposition of penalty upon the delinquent after excluding foreign material, this court finds succor and support from the judgment titled as U.P. State Agro Industrial Corporation Ltd. vs. Padam Chand Jain, 1995 Supp (2) SCC 655. Accordingly, it is directed that the disciplinary authority shall on remand impose a fresh penalty upon the petitioner, as, is deemed fit within three months.