Central Administrative Tribunal - Kolkata
Sumit Sengupta vs Eastern Railway on 3 July, 2019
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1 o.a. 350.01275.2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/01275/2018 Date of order: 3 X® (^
Present HonTole Ms. Bidisha Banerjee, Judicial Member
Honfale Dr. Nandita Chatterjee, Administrative Member
Sumit Sengupta,
Son of Late Sanat Sengupta,
Aged about 49 years,
Working as Chief Commercial Clerk,
Sealdah, Eastern Railway,
•* Residing at 11/ L, Fern Road,
Ballygun-ge, <
kolkata-700 019.
.. Applicant
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y 1. Uhion.of India '
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Represerited:by the General.Manager,
Eastern Railway, r
17., Nefaji Subhas Road
: .' kolkata-700
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2. principal Chief Commercial Manager,
Koilaghat Street,
'•Kolkata-700 001.
3. Principal Chief Personnel Officer, /
Eastern Railway,
17, Netaji Subhas Road,
Ko.lkata- 700 001.
4. Divisional Railway Manager,
Eastern Railway,
Sealdah Division,
Kolkata-700 014.
5. The Senior Divisional Commercial Manager,
Eastern Railway,
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Sealdah Division,
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Kolkata-700 014.
6. The Senior Divisional Personnel Officer,
Eastern Railway,
Sealdah Division, s
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2 o.a. 350.01275.2018
Kolkata- 700 014.
.. Respondents
For the Applicant Mr. A. Chakraborty, Counsel
For the Respondents Mr. S.K. Das, Counsel
ORDER (Oral)
Per Dr, Nandita Chatteriee, Administrative Member:
I ' The applicant'has approacheH "the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
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"(i) . An order directing the.-resppndents to.act andproceed in accordance with '"f law/,.ail'd furtherrJconimanding-hiem./tp rescind, revoke and/or withdraw the r purported speaking order .datedv25:7.20'18 issued by-the concerned authority (being made Annexure "A-9" Original Application) and further directing the respondent authority'to retain .the applicant in the former place at Sealdah in Non-Cash Handling Section viz. .Return Section & Stock etc. ' ... T , ■. '• 'r" t j-
(ii)i " An order directing: the .resporidentsvto rescirfd; revoke and withdraw the purported order of transfer No. 18.05.2018 dated:,24.5.2018 (being Annexure A-
19). ' -.v- / ' (hi) An order directing the respondents to release the unpaid salary for the months of December, 2017 to April, 2018 to the applicant, withheld by the authority illegally.
(iv) - An order directing the respondent to produce the relevant records relating^ to the Posting in the non-cash handling section at Sealdah Section, Eastern Railway before this Hon hie Tribunal.
(v) And to pass such other or further order or orders as Your Lordships may deem fit and proper."
2. Heard both Id. Counsel, examined documents on record. The matter is taken up at the admission stage.
3. The submissions of the applicant, as canvassed through his Ld. Counsel, is that, the applicant was posted at Sealdah and his earlier transfer order from Sealdah to Dakshin Barasat stood cancelled in compliance to an order of the Tribunal in O.A. No. 497 of 2016. That, LX ?*;
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thereafter, the applicant made several representations to the competent / respondent authority to engage him in Non-Cash handling Section, and, as his request was not adhered to, he preferred another O.A. bearing No. V 1676 of 2016 which was disposed of by this Tribunal vide order dated 8.5.2018 directing the respondents to issue a reasoned order. That, the concerned respondent authority thereafter passed a speaking order j rejecting his prayer and, hence, challenging the same, the applicant has approached the Tribunal in third stage litigation with the instant O.A.
4. The Ld. Counsel-Tor the respondents, in response to the directions of the Tribunal dated 15.1.2019-and 13.5.2019 respectively, and, under j instructions, has submitted their justification for not posting the applicant at Non-Cash-Handling.point, largely, reiterating the contents of 4 *, their speaking order'^ =' 7'
5. At the outset, we'examine the speaking order which was issued by ;
the respondents in compliance with order of the Tribunal in O.A. No. i j 1676 of 2016. The same isreproduced as below:-
Reasoned and Speaking order Ref.: Honble CAT's Order dated 08.5.2018 in O.A. No. 350/1676/2016 filed by Shri Sumit Sengupta, Chief Commercial Clerk/SDAH.
The Honble CAT/Calcutta vide Order dated 08.5.2018 in O.A. No. 350/ 1676/2016, disposed of the case with following observations:
"Since his relief lies in the domain of the respondents, we dispose of the O.A. without going into the merits of the case with a direction upon the applicant to prefer a comprehensive representation indicating the manner in which he is aggrieved and seeking redressal of his grievances before the Sr. DCM/ER/SDAH with in a period of 10 days from receipt of this order.
In the even such representation is filed, the Sr. DCM shall look into the grievance of the applicant and consider his representation in accordance with rule pertaining in the field and a reasoned and speaking order there upon within a period of two months thereafter.
It is made clear that if the applicant is found entitled, to be posted in non cash handling point and in case any discrimination is meted out with regard to 4 o.a. 350.01275.2018 his grievances, it shall be suitably redressed by the said respondent authorities by issuing appropriate order with in such period."
H In pursuance to the said order the applicant Shri Sumit Sengupta ; 3 preferred a representation dated 28.5.2018 before the undersigned on 29.5.2018. The details of the representation are reproduced below:
f "I moved for making an application seeking justice for non-considering my case for posting in non-cash handling section ignoring the priority list and also transfer and posting a group no. of commercial clerk in the non-cash handling section ignoring my candidature, before the Honble CAT and by order dated 08.05.2018. Honble CAT was pleased to dispose of the OA inter alia by directive me to make a comprehensive representation indicating my grievances and injustice meted out to me. Honble Tribunal has also held "in case any discrimination is meted out in regard to his grievances, it shall be suitably redressed by the respondent authorities by issuing appropriate order, within such period". Accordingly, I am making the representation pointed out the gross discriminations. Now, the apparent discriminations are as follows
1. i. Sourav Kr. Dutta/Sr. Commercial Clerk ii. Ajay Prasad/Sf. Commercial Clerk iii. Vinod Yadav/Commercial Clerk-..
iv. Taruh'Kr. Basu/Commercial Clerk v. Amit Samal/Commercial Clerk vi. Gautam Pahari/Commercial Clerk vii.Anup Bhakta/Chief Commercial Clerk viii.Shankar Chakraborty/Chief Commercial Clerk . ix. Rajendra Prasad/ Chief GOniniercial'Clerk . x/S'ucharita MukHerjee/ Chief:Gommefcial^Glerk '
- '''X-""r/V .-'-v ■>; f •All' are junior to me in respect 'of candidature'of priority list and in status of length of service, and seniority position but they got posting in non-.cash- handling section as-per their choice by ignoring all transfer and posting policy.
2. It is proved that Sri > Dibakar Mohdal, Dy. Station Manager (Commercial)/Sealdah.antimatedsito all staiTby a letter dated 27.6.2Q-13 the representations oCtrarisfermiade.by the .•efnployees','of-their choicest sections or so may be entertained serially-on priorityr/basis.>But discrimination has
- appeared that in the'priority list of transfer the Said1 serial number of the undersigned was 556 whereas the candidate having Serial No. 576 named as Sourav Kr. Dutta was transferred to his choicest places ignoring or depriving the undersigned and obviously disobeying the above circular. The Xerox copy of the- concerned priority list of transfer is being enclosed herewith for compliance and marked as A-T.
3. Beside this, from the replied dated 21.02.2017 and 07.03.2017 of the RTI Application dated 28.11.2016, it will be evident that Ajay Prasad/Sr. Commercial Clerk and Vinod Yadav/Commercial Clerk were posted at Sealdah Stock and Tarun Kr. Basu/Commercial Clerk and Amit Samal/ Commercial Clerk were posted at Sr. DCM Returns Section ignoring my candidature which will once again prove that the authorities have given false and absurd statement every time and everywhere which is being exposed at every step and contrary to the administrative transfer and posting policy supported by the establishment Rule. Copies of the aforesaid RTI replies dated 21.02.2017 and 07.03.2017 are annexed and collectively marked as A-2.
4. Notwithstanding, Gautami Pahari/CC SDAH and Anup Bhakta/CCC SDAH by an office order No. 11/2016 dated 25.10.2016 were deployed at Sealdah Booking and subsequently both of them were posted at the Return section i.e. Non-Cash handling Section by a verbal order by the authority which clearly indicate that the concerned authorities have adopted this vague policy and making repeatedly one after another false statement only to refuse my accommodation in Non-Cash handing Section.
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5 o.a. 350.01275.2018 ,'V 5. In this regard, I made several applications for considering my posting as choicest place as per circular dated 27.06.2013 issued by the Sr. DCM/SDAH .-/ for considering the case of the applicant for the said purpose on priority basis. J/ Unfortunately, my candidature for posting at Non-Cash handling section was '-■4j never considered, although 1 applied at first but the candidatures of others wj considered by the authority ignoring my case and by disobeying the Railway 9 Board's Circular dated 19.06.2014 and also the^ Hon hie Apex Court's decision in W.P. (C) 82 of 2011 and also in violation of the order and judgment dated 25.04.2016 passed by the Honhle Tribunal to this effect. From the above, it is clear that the intention of the respondent authority is to harass and humiliate me at every stage.
6. Over and above, it is revealed that Shankar Chakraborty/CCC SDAH has been posted in Non-Cash handling Section (Returns Section) by manipulating his actual posting place vide order 36/07/2017 dated 26.07.2017 bearing Serial No. 06. Beside this, Rajendra Prasad/CCC DDJ has also been posted in Sr. DCM Returns Section by violating all establishment rules, being transferred twice in a year from DDJ to BNXR vide order no. 18/March/2017 dated 29.05.2017 bearing Serial No. 26 and subsequently from BNXR to Sr DCM Returns Section vide office order no. 20/03/2018 bearing serial no. 26 and also Sucharita Mukherjee/CCC from DAKE to Sr. DCM office as CTI/HQ vide office order nol20/03/2018 dated 19.03.2018 bearing serial no. 11, marked as "own request" which is a glaring instance of illegal manipulation an unlawful policies of the authorities, Both: two copies are collectively annexed and marked as A-3.
In this regard it is to be noted that the undersigned is not only senior to them in status but also in prescribed priority list for Non-Cash handling section. Furthermore, it is also to be noted that one representation dated i 10.10.2017 has been submitted.to you for my.,postihg;at Sealdah as RPC as an alternative choice in priority list,..but .unfortunately the said appeal has' been alsdlgnored as an uniform, matter.which exposed the-deprivation policy! from your end. The copy, of 'appeaf is ./annexed .as marked/A-4. So it is proved in broad-day-light that the authorities imposed vindictive and malicious attitude upon me, even after being complied with all mandatory rules and norms.
7. . .. Moreover, it is'glaring instance of irregularity and discrimination of your concerned department that durjing the pendency of execution of judgment and order dated 08.05.2018 passed ..by., the;;Hoh'ble. CAT, Kolkata, suddenly my transfer orjder has been issued froin'Sealdah to'Belghafia vide no. 18/05.2018 bearing serial no. 02 dated 24.05.2018. The illegal initiation of making my transfer prior to my compliance of Honble Tribunal's order is not only violation of Constitutional Rule but exposed your malicious attitude which clearly turn to the contempt of court.
Under the above circumstances the undersigned most humbly prays to the posting in the Non-Cash handling section he. Returns Section or Stock Section under Dy. Station• Manager (Commercial)/SDAH or Returns Section under Sr. DCM/SDAH or as RPC at Sealdah Parcel by which the discrimination to be removed following the judgment and order of Honhle CAT, Kolkata and by posting me in my existing place of work at Non-Cash handling Section".
In compliance with the order of the Honhle CAT/Calcutta, the undersigned being Sr. DCM/SDAH has gone through and examined the representation of the applicant along with related records. My observations on consideration of representation of the applicant are as under.
i. Priority list as referred to by the applicant is maintained for effecting transfer from one station to another station, not for transfer within sub sections of a unit at a station or non cash handling point. There is no earmarking of post/posts as non cash handling and posting thereto, as raised by the applicant. All the staff under commercial clerk cadre to which the applicant belongs to, are posted at different stations and they ' v..-' • "7 • a 6 o.a. 350.01275.2018 deal with liquid cash or cash instruments or papers relating to i. cash/instrument transactions.
u. Divisional Return section under Sr. DCM / SDAH located at DRM h office/Sealdah looks after scrutiny, computing, preparation and fj collection of different periodical and monthly statements of financial 7 transactions carried out at all stations along with vouchers, financial instruments etc. for onward submission to Accounts Department for scrutiny on target dates. To meet the target dates, they also assist the stations, if need be, in preparation of such statements of financial transactions.
in. Return Section and also the ticket stock section under Dy. Station Superintendent (Commercial)/Sealdah are sub-units of Sealdah station Booking Office together with operation ticket booking counters. They are not separate independent units where posting of staff is made. Majority of commercial clerks of different grades posted in Sealdah Booking Office mainly work at ticket counters to avoid long queue. Only a limited few staff are deployed in-Return and Ticket Stock sub-section of Sealdah station by the station in-charge i.e. Dy. Station Superintendent (Commercial)/Sealdah. No separate posting is made in Sealdah station Stock or Return Section.
iv. With computerisation of commercial activities and accounting in Railway together -with ^ increase in volume of traffic, the area of manual transaction and accounting is getting limited resulting in major deployment at ticket issuance counters for the intending passengers. Only a limited few staff is required to be entrusted with responsibility for stocking of tickets, money value books, scrutiny of financial transactions, timely accounting and onward submission of financial transactions to f nominated authorities. 1 yi. ^ v. I'"
The limited; number tof ;staff '.engaged .iri the job of stocking of tickets, 'money value books, scrutiny, of. fin'ancial transactions, accounting are required to be regular, proficient, fully dedicated, target oriented and 4s man of integrity. Any lapse in their part will put the Railway in financial mess.
VI. Assignment for stocking of tickets, money value books, accounting as
-'discussed above are , very very sensitive, vital and crucial for t ^administrative * interest and accordingly ^ only a selected few who are ''. .^ competent are ^posted/deployed 'for the purpose whether he/ she makes an appeal or ridt;...'Moreover, seniority of staff is not" a point of consideration for such posting/assignments. Further, preferring an appeal for such assignments by any staff does not entitle him/her for such assignments.
Vll. The staff named by the applicant in his representation have been found suitable for the post/assignment considering their competence and other Required qualities.
viii. Contention of the applicant regarding memo dated 27.06:2013 issued by Dy. Station Superintendent (Comml.)/Sealdah, Shri Dibakar Mondal who is over-all in-charge of Sealdah station ticket booking office to sub section supervisors under his control is misconceived, misrepresentation and distortion of instruction contained therein. The contents of the letter in verbatim is, "As per directives of the competent authority under above reference, please communicate all the staff under your shift who has been prayed for transfer earlier to the competent authority but till their case has not been finalized or pending, may please be contact with Dy SS/Comml./SDAH positively". From the above, it is clear that instruction was not for posting in choicest section.
IX. The applicant had served at Return Section under Sr.DCM/SDAH and Return Section under Dy. SS (Com)/SDAH in past and his performance was unsatisfactory during his tenure at both the places. Moreover, he is irregular in duty.
X. As regards the contention of the applicant regarding his transfer to Belgharia station, it is to point out that all staff belonging to cadre of commercial clerk staying long at a unit at public interface for 11 years and above have been uniformly transferred and as the applicant was staying at Sealdah Booking for more than 11 years, he has also been transferred to Belgharia station to work in Booking Office.
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xi. In posting of applicant in past and his present transfer, no
discrimination has been made. His posting has been made keeping in view the administrative requirement vis-a-vis his performance. In view of the above, the appeal made vide representation dated 28.05.2018 by the applicant for posting is not considered tenable in administrative and larger public interest. This appeal is thus disposed off in compliance with the order of the Hon hie CAT/Calcutta in subject O.A. No. 350/ 1676/2016. This is without prejudice.
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(C.R. Jha) Sr. Divisional Commercial Manager Eastern Railway, Sealdah"
The main rationale which had been advanced/by the respondents in their speaking'order are as follows
(i) There is nd priority listtfor posting in -different sub-sections of 1 •s.. ■'r,, f;; i, ■ ' 6 *.
a unit. There' are rto'i.earrh£irked. non'-cash handling posts in the cadre of commercial cadre.
(ii) That, all the .staff under Commercial Clerk cadre are posted at
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; different stations/^dnits andkhey arB'^to deal with liquid jcash, cash instruments or papers, relating to cash/instrument transaction. The applicant herein is a part of the Commercial Clerk-Cadre.
(hi) In the Divisional Return Section, the .staff so engaged have to be responsible with the job of stocking of tickets, money value books and scrutiny of financial transactions which are required to be handled by regular, proficient, fully dedicated, target oriented staff of integrity as any negligence on their part would create substantial difficulties and jeopardize the system.
(iv) With computerization of commercial activities and accounting together with increase in the volume of traffic, only manual ' si ■ / / 8 o.a. 350.01275.2018 /.
/ transactions and accounts require physical transactions in t; the Returns Section. Hence, only a few responsible staff are deployed in the Returns Section.
The remaining staff including the Commercial clerks mainly work at ticket counters to address the long queue of passengers.
Hence, only those staff who have been found suitable in accordance with their competence and sense of responsibility have been posted in:the Return Section.
(V) That, the applicant, who had earlier -served at, the Return Section was repeatedly irregular., in his duties and his .performance was also found to be unsatisfactory during such postings. r 1.
(vi)-- That, the memo dated 27.6.2013 ,6f the respondent authorities was not circulated to obtain choice of postings.
(vai) That, all stb|'f^ who^have . stayed for more than 11 years and
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above. sCt"tthits 'w^?^ublic'"'4nterfaed<''li^ve been uniformly transferred and, as the applicant was posted at Sealdah Booking Unit for more, than .11 years, he had been .transferred to Belghor-ia Station-. That, no-discrimination has been meted out to the applicant vis-a-vis other similarly circumstanced employees of the Commercial Clerk Cadre.
On 8.5.2018, this Tribunal had disposed of the earlier O.A. No. 1676 of 2016 filed by the applicant as follows:* "2. It is noticed that the applicant had preferred representation before the Senior Divisional Commercial Manager way back 2016 November seeking posting in non-cash handling point. Ld. Counsel for applicant submits that accordingly seniority list of transfer and posting order has been published and who are juniors to the applicant have been posted in the non-cash handling point. He brought forth certain names by way of rejoinder, which are not reflected in his representation.
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9 o.a. 350.01275.2018
3. Therefore, since his relief lies in the domain of the respondents, i: we dispose of the O.A. without going into the merits of this case with a J ' direction upon the applicant to prefer a comprehensive representation indicating the manner in which he is aggrieved and seeking redressal of i his grievances before the Senior Divisional Commercial Manager, within a period of 10 days from the date of receipt of this order.
4. In the event such representation is filed, the Senior Divisional Commercial Manager shall look into the grievance of the applicant and consider his representation in accordance with rules operating in the field and pass a reasoned and speaking order thereupon, within a period of 2 months thereafter.
5. It is made clear that if the applicant is found entitled, to be posted in non-cash handling point and in case any discrimination is meted out in regard to his grievances, it shall be suitably redressed by the said respondent authorities by issuing appropriate order, within such period."
By the abbvenoted order, the Tribunal had directed as follows:-
(a) That, according to the applicant his juniors have been posted in the non-cash handling points.
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(b) That,the 'ippliciht v wasc to prefer a comprehensive
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representation seeking redfessakof his grievance before the competent respondent authority and that the .competent respondent authoritytwvas -to 'pass a. reasoned order within a specific time frame.
(c) And, in case the applicant is found entitled to be posted in hon-cash handling point and in case any discrimination was meted out to him; it'Should be-redressed suitably by issuing the appropriate orders.
In their speaking order issued in compliance, the respondent authorities had made it very clear that only such staff have been deployed in the Return Section, who are responsible and have been found to be dedicated and sincere in their duties, as because the job in the Return Section, although carried out with limited staff, calls for responsible handling of the transactions, and, that, the •s: ' ■VCfc-r*-
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applicant in his earlier stints had proved to be irregular in his duties and unsatisfactory in his performance, while posted in the / Returns Section.
The respondents have also stated that no discrimination was meted out to him as because all staff of the cadre, who had been posted for more than 11 years at public interface points, have been transferred out and, accordingly, the applicant's grievance of discrimination is not justified.
From the above'it is noted that the respondent authorities had adhered to the specific directions of the Tribunal while issuing their speaking order.
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6. Ld. Counsel for the applicant submits'that the applicant is wary of being posted in the ;Cash 'Section; as: because he was penalized for about * .*• f.
six years'when he whs earlier posted in the Cash Section and, hence;, the applicant is apprehensive that he might again be pulled up for misdemeanor in case he,is posted in Cash Section. This is evidenced by * ^ i his representation dated 19.7.2013 (Annexure\A-T-contd, to the O'.A.) The applicant has not brought before us any transfer policy of the authorities which establish that movement between sub-sections of a unit is guided by a priority list based on. ^seniority. There are no averments either as to how the applicant alone was singularly discriminated against (vide orders dated 18.5.2018) when 52 officials of commercial clerk cadre were transferred on administrative grounds on account of their long stay in earlier place of posting. Hence, the transfer policy remains unassailed by the applicant.
Hon'ble Apex Court has ruled in N.K. Singh v. Union of India, (1995) I LLJ 854 that unless the decision to transfer is vitiated by mala ^A' 'S^SSt.
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fides or infraction of any professed norm or principle governing the / transfer, the same cannot be scrutinized judicially. Challenge in Courts of a transfer, when the career prospects remain unaffected and also there f is no detriment to the government servant must be eschewed and interference by courts should be rare. Such interference by courts should be made only when a judicially manageable and permissible ground is made out.
Further in Abani Kanta Ray v.nState of- Orissa, 1995 Supp (4) SCC 169 it hasrfurthAl^el^imflaMtiS! m + adsferJwhicWs an incident of ife. 'Shi. 'Sii --1 service is not ^o tj^Imterfered mth^>^h^Courts uhl^^it is%hown to be clearly arbkra^ or vitiat^^^^SdJ fi(fe^^Pmfraction q^^y^rofessed % i norrmbr pMciple gov^m-ingih^rlnsflr $' i i ;
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(i i i S|The trans^r^^^dbr^h] challerjld on grounds^ of |C^ctjori^f^professed norm ^J^sfetufes.\^Alth^gh the appUcant,^s'''lbc?iiD^d m^lide^on^the^oa^ff^he^re^pOnden^authoritv he has not nim^^plfillTffigp^^offi^r ' ^ to^whom malafide has been alleged ^br^concluslvely^estSblished^malaiide against the concerned authority. The apphcanPhas"referred to the fact that priority list has been deliberately ignored in the case of his transfer which has been suitably controverted by the respondents by stating that priority lists are not maintained for sub-sections postings within a unit and also that there were no directions to prefer choice of place of posting in respondents' memo dated 27.6.2013.
\ »: * *> ' L 12 o.a. 350.01275.2018 L# 7/. Accordingly, the applicant's claim, not being substantiated by facts w9 as well as law, deserves to be dismissed.
r ✓ The O.A. therefore fails to succeed.
Parties will bear their own costs.
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(Dr, Nandita Chatterjee) (Bidisha Bhnerjeej
Administrative Member Judicial Member
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