A.S. Bopanna, CJ
Heard Mr. H.K. Das, Mr. D.J. Das and Mr.U. Pathak, learned counsel for the petitioners.
In all these petitions, common question arises for consideration in the background of the decision ultimately taken by the Central Administrative
Tribunal (for short ‘CAT’) based on the opinion expressed by the Full Bench of the CAT through its order dated 22.08.2014 in O.A. Nos.288,
289, 290, 291, 247, 248 and 318 of 2010. In that view, all these petitions are taken up together, heard and disposed of through this common order. For
the purpose of narration of facts, the case pleaded in W.P.(C) No.6089 of 2015 is taken note.
The petitioners herein through the order dated 29.06.2009 imposed the punishment of withholding of three increments without cumulative effect on the
respondent herein. Prior to the imposition of punishment, a charge memo dated 19.05.2009 was issued wherein it was indicated that action in
accordance with Rule 11 of the Railway Servants’ (Discipline and Appeal) Rules, 1968 is to be proceeded against him. In the statement of
imputation, it was stated that the respondent had failed to achieve the individual target set vide letter dated 21.05.2008 while performing his duty during
periods from April, 2008 and March, 2009 and the same was construed as a misconduct.
The respondent herein claiming to be aggrieved by such action against him had approached the CAT in O.A. No.248 of 2010. The said application
before the CAT was clubbed along with other applications wherein similar consideration has been made by the petitioners herein and the punishment
to the same effect based on the same charge alleged was been imposed, which relate to other connected petitions herein. During the consideration of
the said applications before the CAT, the applicants had relied on the earlier decision of the CAT dated 17.8.1990 passed in O.A. No.10(G) of 1990
(Shri Nripendra Ch. Acharjee). In the said decision, similar action taken against the applicant therein had been set aside by the CAT holding that the
charge alleged against the applicant therein cannot be construed as misconduct and, therefore, cannot be punished. However, another Division Bench
of the CAT which was considering the case of the respondent herein and other similarly situated employees, was of the opinion that the decision in
Shri Nripendra Ch. Acharjee relied on, had not laid down the proper law and therefore, had disagreed with the same and had directed that the case of
the respondent herein and other connected applications be placed before the Chairman for consideration by a Larger Bench. Accordingly, a Full
Bench was constituted and, on considering the same, the order dated 22.08.2014 was passed. Through the said order, the Full Bench of the CAT has
approved the view taken in the case of Shri Nripendra Ch. Acharjee and, in that light, had placed the matter before the appropriate Bench for
consideration of the matter on merits in the background of the opinion expressed by the Full Bench.
In that backdrop, the appropriate Bench through its order dated 30.09.2014 in all these cases had arrived at the conclusion that the order of
punishment is not justified and by relying on the decision in the case of Shri Nripendra Ch. Acharjee has set aside the impugned order dated
29.06.2009 (wrongly indicated as 21.05.2008). The petitioners herein, therefore, claiming to be aggrieved by the order of the CAT are before this
Court in these petitions.
The facts, as noticed herein, is also similar in the connected petitions except that separate orders have been passed against each of the respondent
therein and, accordingly, the relevant orders have been set aside.
The respondents though served in all the petitions, have not chosen to appear in this proceeding. In that background, we have heard the learned
counsel for the petitioners and perused the petition papers.
Though in the instant facts, there are orders passed by two Division Benches of CAT dissenting to the opinion expressed by each other and the matter
was, thereafter, placed before the Full Bench of CAT, which ultimately expressed its opinion and based on such opinion, the order was passed by the
CAT in the instant case and the Full Bench, in that regard, has made a detail consideration of the issue, we find it appropriate that without adverting to
those aspects of the matter, it would be convenient for us to take note of the fact situation herein and arrive at the conclusion as to whether the charge
made against the respondents herein is justified and as to whether the same could be construed as a misconduct. Based on such consideration, the
order passed by the CAT is to be noticed thereafter.
In that view, what is to be taken note at the outset, is the circulars by which the incentive scheme had been circulated by the petitioners herein. It is
pursuant to such circulars issued, the petitioners herein have, thereafter, issued the charge memo against the employees concerned. In that
background, what is to be taken note is whether the said circulars would enable the petitioners herein to treat the non-performance to derive the
incentive as misconduct if the employees concerned have not performed in accordance with the laid down guidelines therein.
The first of the circular is dated 22.10.2003. A perusal of the same would indicate that an incentive scheme for recognizing the good work done by the
ticket checking staff who give outstanding performance by showing earnings of more than Rs.20,000/- on account of penalty from ticketless
passengers and un-booked luggage cases in a month was introduced with the concurrence of the Finance Directorate of Railway Board . The same
provides for cash incentive to ticket checking staff. The object to issue such circular was that the same would not only earn revenue for the
petitioners, but would also prevent the ticketless travellers and unauthorised luggage which would also provide more comfort to law abiding passengers
who have purchased tickets. On the said scheme being introduced, after allowing the same to continue for some period, a subsequent circular dated
21.05.2008 was issued. Through the said circular, the target for the ticket checking earnings was fixed for the year 2008-09. As per the requirement
therein, the average daily penalty cases for ticketless irregular travel by an individual ticket collectors/TTEs was fixed at at-least 7(seven) cases and
unbooked luggage cases should be at-least 2(two). It is based on the said circulars, action has been taken against the respondents since, according to
the petitioners, the respondents had not achieved the target as fixed therein. In that backdrop, the only issue for consideration herein is as to whether
non-reaching of the target as fixed under the circular dated 21.05.2009 could be construed as a misconduct so as to impose a punishment even if the
same is a minor punishment imposed on the staff. It is the said scheme which had been considered by the CAT at the first instance.
In the case of Shri Nripendra Ch. Acharjee, the CAT while considering this aspect of the matter was of the opinion that from the nature of the charge
framed against the respondent, it does not strictly come within the purview of misconduct. It was explained therein that in case there are no ticketless
traveller or travelers in a train, the ticket checking staff cannot be expected to realize the amount fixed by the authority as minimum target and pay the
same to the railway administration. In that background, it was concluded that the action taken terming it as misconduct would not be justified.
However, another Division Bench while subsequently considering the case of the respondents herein and similarly placed employees through the
decision dated 30.05.2011, was of the opinion that the same can be construed as a misconduct by going into the general proposition there being
ticketless travellers in the train and the object for which the circular has been issued and incentive is also provided. The Full Bench on the other hand
has, however, agreed that the view taken by the CAT in the case of Shri Nripendra Ch. Acharjee is the correct view. In that background, while we
independently considered the circular dated 22.10.2003, it only indicates that it was introduced as an incentive scheme for recognizing the good work
done by the ticket checking staff. It is in that light, it was provided therein that after the penalty, both from the ticketless travellers as well as the
unbooked luggage is realized by such alert checking staff, benefit has been provided to him by way of incentive. Therefore, at the outset, it can only be
taken as an incentive provided to the checking staff for doing his duty more vigilantly and preventing the ticketless travellers. The consequence of non-
performance is not indicated in the said circular nor any target fixed therein. However, subsequently, through the circular dated 21.05.2008, a target
has been fixed for the ticket checking officer by indicating, that he has to book at-least 7(seven) cases of ticketless travellers and 2(two) cases of
unbooked luggage. Even in that regard, the consequence of not achieving the target has not been indicated in the circular. That is to say, there is no
indication that non-achieving the target would be treated as a misconduct and punished. Apart from the said circular not indicating the same, no other
service regulation is placed to indicate that the same is treated as misconduct under the regulation. Hence, the only consequence is that if a checking
staff does not book cases and realize the penalty he does not get the benefit of the incentive.
If that be the position, the said circular can only be treated as a scheme whereunder incentive has been provided to the checking staff, but not
achieving the target cannot be treated as a misconduct, at best such employees would not reap the benefit of incentive that is provided therein.
Therefore, if this aspect of the matter is kept in view, irrespective of the decisions that have been referred to by the CAT in the course of its
decisions, from the very fact arising herein, it is clear that non-achieving of the target cannot be treated as misconduct. If this aspect is taken note, the
view expressed in the case of Shri Nripendra Ch. Acharjee is the correct view and is appropriately upheld by the Full Bench. Therefore, if the said
aspect is kept in perspective and the ultimate order passed by the CAT on 30.09.2014, impugned herein is taken note, we do not see that any error has
been committed by the CAT in quashing the order of punishment imposed against the respondent.
Therefore, for the above stated reason, we are of the opinion that these petitions lack merit and they are, accordingly, disposed of.
