TATIA,j. - (1.) HEARD learned counsel for the parties.
(2.) BRIEF facts of the case are that the petitioners are working on the post of conductors in the buses run by the RSRTC. The respondents framed a Scheme known as Green Card Scheme for which necessary orders were issued on 7/15. 12. 2001. In this scheme, it was provided that the conductors may opt for this scheme and after selection the conductors will be given Green Card permitting them to ply the bus wherein the inspectors of the respondents will not be permitted to check the vehicle unless they are specially authorized by the Managing Director. In this scheme, the conductors may suggest the name of the driver and the number of the vehicle so that the same driver and the vehicle may be provided to the conductors holding Green Card, but in any case, if said driver and vehicle is not available then the other driver and vehicle will be provided, but on this ground, the conductors will not be entitled for reduction of the target fixed. The conductors were entitled in the share of profit to the extent of 35%. Out of 35%, 75% of the amount will go to the conductors and 25% to the drivers. It was also fixed that the conductors will have to give at least 23 days scheduled duty. It is also provided in the scheme that in special circumstances after obtaining the consent of the General Manager of the depot, the Green Card of any conductor can be cancelled and in that situation, the conductor will not be entitled for the above profit. In pursuance of the above scheme, the petitioners applied for the Green Card and they submitted consent letter in the month of Dec. , 2001 itself. But, it appears that the petitioners failed to achieve the target fixed for the route and, therefore, the petitioners alongwith other persons, who did not achieve the target were served with office order dated 1. 2. 2002 intimating the intention of the respondents to initiate disciplinary enquiry against the petitioners. Copy of this order is placed on record as Annex. 2. The targets fixed in the month of Jan. , 2002 are given in order dated 31st Dec. , 2001 (Annex. 3 ). The petitioners were served with the charge-sheet, dated 27. 2. 2002, copies of which were placed on record as Annex. 4, 5 and 6. It appears that the petitioners were suspended, but by order dated 29. 07. 2002 (Annex. 7) it was decided by the respondents to reinstate the petitioners, and by the same order, they were posted at various different places. It is relevant to mention here that by order dated 29. 07. 2002 as many as 78 employees, who were facing departmental enquiry and against whom there were suspension orders, were permitted to join the duties and posted at different places. This order dated 29. 07. 2002 contains certain directions that the Chief Manager will personally see that there is no complaint of corruption against these employees and before sending them to any route a target will be fixed and, thereafter, these employees will be sent on the above route. Any request of transfer and posting of these employees will not be considered for one year. In these circumstances, the petitioners preferred the present writ petition challenging the action of the respondents by which the respondents contemplating to proceed against the petitioners by holding departmental enquiry for the alleged misconduct of not achieving the target fixed in the above Green Card Scheme and also challenged the transfer order dated 29. 07. 2002. Learned counsel for the petitioners submitted that the petitioners, who opted for the scheme knowing it well that they will have to achieve the target, but for that purpose, they cannot compel or bring the passengers to earn the profit for the corporation. They were also knowing that in case, they will not achieve the target, their card can be cancelled and as per the Clause 12 of the Scheme they will not be entitled for the benefit of the scheme and they will be deprived of the share in the profit. It is also submitted that there is no allegations against the petitioners that they as a Conductor, have shown any slackness in performing their duty as Conductor. In the statement of charge, only allegation is of not achieving target, which is fixed for Green Card Scheme. It is also submitted that the order of the transfer passed by the respondents dated 29. 07. 2002 has not been passed in administrative exigency, but has been passed as a result of the pendency of the departmental enquiry against the petitioners and the like persons, who were facing the departmental enquiry. It is also submitted that the conditions imposed in the order dated 29. 07. 2002 (Annex. 7) clearly indicate that the order is not a simplicitor of transfer, but this is an order of punishment. The respondents submitted that the respondents-corporation is required to do the business and in present time, the respondents is also required to compete with other transporters and also required to give better services to the public. Therefore, it was decided to encourage the drivers and conductors of the buses for augmenting the income of the corporation and also to provide certain benefits to the conductors and the drivers serving in the respondent-corporation. Therefore, the scheme was floated and the targets were fixed. The petitioners and other persons voluntarily opted for the scheme and they took various benefits of the scheme, particularly, the petitioners were not even liable for any checking by the inspector of the respondent-corporation and they were entitled for the benefit of the share in the profit. Therefore, they were required to give the results to the respondents-corporation.
(3.) ACCORDING to learned counsel for the respondents, after availing this benefit of the scheme, if the employee fails to achieve the target amounts willfully slowing down in the performance of work, which is misconduct as prescribed in the Standing Orders applicable to the services of the petitioners, therefore, the respondents rightly initiated proceedings to hold enquiry for the misconduct. It is also submitted that the respondents issued order dated 2. 1. 2002 stating therein that in case, the targets will not be achieved then it will be treated as a misconduct and the department will be free to initiate the proceedings against the conductors. Learned counsel for the respondents submitted that the Hon'ble Supreme Court laid down that unless the transfer order is out come of malafide exercise of power or violative of any statutory provision, it cannot be made a subject matter of judicial interference. Learned counsel for the respondent relied upon the judgment of the Hon'ble Apex Court delivered in the case of National Hydroelectric Power Corporation vs. Shri Bhagwan & Anr. (1), and the judgment delivered in the case of State of Bank of India vs. Anjay Sanyal & Ors. A bare perusal of the above facts and the documents placed on record there is no dispute that scheme was floated by the petitioners by order dated 7/15. 12. 2001. In this scheme certain benefits were given to the employees, who opt for this scheme and it is clearly provided in the scheme itself that the General Manager of the depot was empowered to cancel the Green Card with the consent of the conductors within the currency of the month for which Green Card was given to the conductors. In Clause 8 of the above scheme it is provided that after taking into account 15 days working of the conductors, the profit will be calculated and in case of achieving income more than of the target, 35% of that income will be given to the conductors and the drivers in proportionate of 75% to the conductors and 25% to the drivers. The scheme as formulated is only an incentive scheme, which provides special target. Who opt for the special target and who want to take benefit of the profit, he is required to achieve target of revenue. Therefore, the persons who opted for this scheme were required to do two things, one to perform the duty of Conductor and second, to achieve the target. A Conductor discharges his duties faithfully and devotedly still he may not able to collect the revenue as fixed in the target of the Scheme. Can such person be held guilty of misconduct of "slowing down in performance of work" as given in Standing Orders? Answer will be in negative. If the Conductor did not discharge his duties with required due diligence, but achieved the revenue target fixed in Green Card Scheme, he cannot say that the department cannot enquire into his conduct of slowing down in performance of his duty as Conductor. At the cost of repetition, it may be important to take note of the fact that charge levelled against the petitioners is not of slowing down in their performance of work as conductor, but charge is only of not achieving the target. Therefore, in case of non-achieving target in the Scheme their card can be cancelled and the conductor will be disentitle to the share of profit only. Not achieving target itself, without allegation of slowing down in performance of work cannot be ground to punish such conductors under the Standing Orders. ;