S. N. Srivastava, J. - (1.) -These two petitions are interknit together inasmuch as the petitioners have been penalised by a composite order dated 21.5.2001 passed by Regional Manager, U.P.S.R.T.C., Allahabad.
(2.) PETITIONERS in Writ Petition Nos. 23842 of 2001 and 6585 of 2002 happened to be the Driver and Conductor respectively of the Roadways Bus in question, which yielded recovery of smuggled goods. A brief resume of necessary facts is that the Officers of Central Excise, Allahabad had been tipped off that the Roadways bus in question, which was plying between Sonauli and Allahabad and was on way to Allahabad, was carrying smuggled goods and therefore, on its arrival at Civil Lines Bus Station on 15.5.1995, the officers aforestated besieged the bus and searched it for smuggled goods. On search, certain goods were found concealed underneath the foam seat and sandwiched between foam and the ply of the seat. As a result of recovery, the bus was seized and it was released after about 10 days. Besides the prosecution launched by the Central Excise Department, the petitioners were proceeded departmentally inasmuch as departmental enquiry was set afoot appointing one Sri R. S. Pandey as Enquiry Officer. The Enquiry Officer submitted his report on 17.8.1995 and it would transpire from its perusal that the petitioners were purged of the charges levelled against him in the charge-sheet. It would also appear that the disciplinary authority disagreeing with the enquiry report issued show cause notice to the petitioners by means of office memo dated 17.8.2000 to which the petitioners replied. In the ultimate analysis, it would further appear, the disciplinary authority penalised the petitioners by imposing a fine of Rs. 50,000 and withholding of increments for two years taking into reckoning the loss occasioned to the department. It is the aforestated order the validity of which has been canvassed by means of the present petition. I have heard the learned counsel for the parties at prolix length and considered all the material facts and circumstances in all their ramifications. The learned counsel for the petitioners canvassed across the bar that the impugned order has been passed notwithstanding the fact that in the enquiry, the guilt could not be brought home and further that the search of the petitioners could not yield anything incriminating and also that Excise Department itself exonerated the petitioners of their collusion in the matter. He further submitted that the petitioners could not be taxed with being responsible for the loss occasioned due to seizure of the vehicle by the Central Excise Department. In opposition, the learned counsel for the respondents tried to lend justification to the impugned order stating that it was rightly passed considering the loss occasioned owing to dereliction of the petitioners. Before proceeding further, the decision rendered by the Apex Court in Union of India v. G. Ganayutham, may be noticed. In this decision, the Apex Court called in aid Wednesbury test and it was in quintessence observed by the Apex Court as under : "To judge the validity of any administrative order or statutory discretion, normally the wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator.............." The Apex Court also called in aid C.C.S.U. test for observance according to which the Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance of logic or moral standards. In a recent decision in Regional Manager U.P.S.R.T.C., Etawah and others v. Hoti Lal and another, 2003 (2) AWC 1070 (SC), the Apex Court after review various decisions, observed as under : "A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
(3.) IN the light of the above, I proceed to scan the impugned order whether it is one which may be branded as irrational or may be termed as shocking the conscience of the Court. From a perusal of the enquiry report dated 27.8.1995, it is evident that none of the charges of which the petitioners were indicted, could be brought home and the enquiry officer has recorded a categorical finding that it is not proved that the articles were smuggled into the bus within the knowledge of the petitioner nor could it be established that both the petitioners had colluded in this regard with the person smuggling the goods. It has been further observed by the enquiry officer referring to the finding of the Asstt. Excise Commissioner that none of the smuggled goods were either recovered from underneath the Dunlop foam of the seat or the tool box or from the possession of the delinquent officials and as a result, the delinquent officials were exonerated and show cause notices issued to them were discharged. He also did not find any clinching evidence to establish that Dunlop foam of the seats were torn with a view to concealing the smuggled goods and the Dunlop foam was not seen to have suffered any damage in order to facilitate smuggling of goods. On the other hand, from a perusal of the impugned order, it appears to me that the order has been passed disagreeing with the enquiry report on the premises that the contraband goods were also found concealed and recovered in the tool box, etc. while enquiry report bespoke contrary to it and that foam of the seats of the bus were found badly torn and that loss has been occasioned to the department due to seizure of the bus. It is well-settled position in law that where disciplinary authority agrees with the finding of the enquiry officer, reasons must be borne on the report of enquiry and in case he disagrees, he has to record his own independent reasons. IN the present case, the punishing authority disagreed with the report of the enquiry officer and in the circumstances, it was incumbent upon him to record reasons indicating area of divergence. The enquiry officer has recorded specific finding that there is not an iota of evidence on record suggestive of the fact that there was either any collusion between the petitioners and the person from whose possession contraband goods were recovered or that it was within the knowledge of any of the petitioners that the person concerned was possessed of contraband articles or that the Dunlop foam of the seats of the bus were sundered to conceal the contraband articles. No reasons have been assigned for disagreement with any of the points/aspects either in the show cause notice or in the impugned order passed by the Punishing Authority or to show as to what are the evidences which pointed to the collusion between the petitioners and the person possessed of contraband articles or that the petitioners had knowledge that the person concerned was carrying smuggled goods. IN the instant case, notwithstanding the fact that there was no finding borne on the enquiry report in this regard nor was any material or evidence on the point indicative of the delinquency or collusion of the delinquent officials, the disciplinary authority had no valid reason to import the factum of collusion or knowledge of contraband articles being carried in the bus on the part of delinquent officials and consequentially, punishing him for causing damage to the Dunlop foam of the seats or loss occasioned to the Corporation on account of seizure of the bus by excise authorities. The disciplinary authority appears to have formed subjective satisfaction about delinquency of the officials on generalisation and no reason has been borne on the impugned order to sustain it. From what has been noticed above, I do not feel inhibited to observe that the impugned order was passed illogically and was irrational and the punishment imposed on the petitioners was without cogent reasons in support thereof. In Union of India v. H. C. Goel, AIR 1964 SC 364, it was observed by the Apex Court in para 26 of the decision that "it may be that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished applies as much to regular criminal trials to disciplinary enquiries held under the statutory rules." It was further observed by the Apex Court that "In dealing with a writ petition filed by public servants who have been dismissed, or otherwise dealt with so as to attract Article 311 (2) the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all". The further observations in the self same paragraph made by the Apex Court is that "...................and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings which is the basis of his dismissal, is based on no evidence." In the instant case, the enquiry officer has dealt with each and every aspect on valid material and evidence and recorded the finding on the basis of valid material and evidence on record exonerating the delinquent officials of the charges. On the other hand, notwithstanding categorical finding that there is no evidence on record to vouch for the fact that the Dunlop foam suffered damage in the course of incident in question, the disciplinary authority formed his subjective satisfaction and penalised the petitioners on that basis with recovery of Rs. 50,000 and stoppage of two increments. Upon consideration of the entire facts and circumstances, I am of the view that there was no valid or cogent reason for the basis of the order passed by the disciplinary authority and in the circumstances, subjective satisfaction of the disciplinary authority that damage was caused to the Dunlop foam of the seats due to the delinquency of the petitioners cannot be countenanced in law.;