HILLS TRADE AGENCIES, vs UNION OF INDIA and ANR

Heard Ms. M. Sharma, learned counsel for the appellant as well as Mr. B. Sarmah, learned Standing Counsel for the respondent-Railways.

This appeal is under section 23 of the Railway Claims Tribunal Act, 1987. The appeal is directed against the judgment and order dated 28.11.2008

passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in application No. OA No.479/2005. A very short but disturbing point has

been raised in the present appeal. Owing to the nature of the issues raised, in the considered opinion of this Court, no purpose would be served by

referring to the facts of this case or to the decision rendered on various issues by the learned Tribunal. Hence, notwithstanding the requirement under

the provision of Order XLI Rule 31 CPC, which regulates the procedure for deciding an appeal, this Court does not propose to refer to the facts in

dispute or to refer to the issues as decided by the learned Tribunal.

The records reveal that the claim petition i.e. application No. OA 479/05 was earlier decided by the learned Railway Claims Tribunal, Guwahati

Bench, Guwahati by order 08.01.2007. Aggrieved by the said order, the respondent-Railway had approached this Court by filing an appeal. The said

appeal was registered as MFA 51/2007. The said appeal was analogously heard along with various other appeals. From the contents of the impugned

order dated 28.11.2008, the learned Railway Claims Tribunal has recorded the direction contained in the order passed by this Court in MFA 51/2007

which is quoted below:- “Upon perusal of the judgment and order passed by the Ld. Tribunal, it appears that though those questions were raised by

the parties before the Ld. Tribunal and are therefore required to be gone into by the Ld. Tribunal before passing any order either awarding the

compensation or rejecting the same, no decision on those issues were given by the Ld. Tribunal. The Ld. Tribunal simply by recording the submissions

of the parties passed the award without recording any finding on the issues, which arose for decision. In view of the aforesaid position, I set aside the

judgment and orders passed by the Ld. Tribunal and remit the matters to the Ld. Tribunal for giving decisions on the question raised in the original

applications filed by the parties, as for recording such findings, the facts of each case has to be dealt with which has not been done. The parties are at

liberty to raise all questions as has been raised before this Court. The Ld. Tribunal shall answer all the questions raised and decide the original

application on its own merit and in accordance with law.â€​

Thereafter, the learned Tribunal proceeded to record 7 issues framed for trial. These issues are quoted below:

(1) Whether the respondents prove that this Tribunal has no territorial jurisdiction to entertain the O.A.?

(2) Whether the respondents prove that the notice issued by Advocate, Maheswari not valid?

(3) Whether the respondents prove that the applicant has no title to claim refund?

(4) Whether the respondents prove that the consignment was over-loaded?

(5) Whether the respondents prove that the over-charges were collected following the legal procedure and natural justice?

(6) Whether the applicant proves that the weighbridge was faulty and it is entitled to the refund of Rs.6,06,907/- with interest?

(7) What order? What relief?

However, while deciding the claim petition i.e. OA 479/05, the learned Tribunal had only discussed issues No.1, 2 and 3. Without touching or

discussing any other issues, the claim application was dismissed on the ground that the notice issued by the counsel for the appellant could not be

treated as a valid notice under section 106 of the Railways Act.

The learned counsel for both sides have been heard. The learned Standing Counsel for the Railway has made his submissions in support of the

impugned order. However, this Court is of the view that when several issues were framed for trial and the Court/ Tribunal desires to dispose of the

case on any issue of law, the learned Tribunal was obliged to frame such issues of law and take up the matter for hearing on preliminary issues. As

per the scheme of Railway Scheme Tribunal Act, 1987, Rule 16 of the Railway Claims Tribunal (Procedure) Rules, 1989, permits the learned Tribunal

to summarily dismiss an application by recording the reasons. Therefore, if the claim petition was not maintainable on count of non-compliance of

Section 106 of the Railway Act, the learned Tribunal could have validly decided the said point as a preliminary issue. However, the case was not

summarily heard, as such, it is perceived that the learned Tribunal was hearing the parties on all the issues framed by the Trial Court.

In this context, it must be noted that the provision of Order XIV Rule 2(1) provides for a mandate to the Courts and Tribunals, hearing the matter as

a Civil Court to pronounce judgment on all issues. Therefore, by not rendering any decision on the remaining issues No.4 to 7 as framed for trial, the

learned Railway Claims Tribunal, Guwahati Bench, Guwahati is found to have violated the mandatorily provisions of Sub-rule (1) of Rule 2 of Order

XIV CPC by not pronouncing judgment of all issues.

It would be worthwhile, to refer to the provisions of Rule 21(2) of the Railway Claims Tribunal (Procedure) Rules, 1989 wherein it is provided that

in recording the issues the Tribunal shall distinguish between those issues which concerned points of facts and those which concerned points of law.

Therefore, as indicated above, there was no impediment for the learned Tribunal to decide the matter on point of law. Having not done so, it was

obliged to pronounce the judgment on issues as provided under Order XIV Rule 2(1) CPC.

Therefore, in view of the violation of the following:- (1) Order dated 29.04.2008 passed by this Court in MFA No.51/2007, (2) Violation of Provision

of Rule 21 of the above referred 1989 Procedurel Rules, (3) Sub-Rule (1) of Rule 2 of Order XIV CPC, the impugned order dated 28.11.2008 passed

by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in application No.OA No.479/2005 is not sustainable and, as such, the same is set

aside. The matter is remanded back to the learned Tribunal for a second time for a fresh decision in accordance with law. This order of remand is

passed within the meaning of Order XLI Rule 23 A CPC.

As the case relates to the year 2005, it is hoped that the learned Tribunal shall hear the matter out of turn, if required by taking up the hearing on

day to day basis for the early disposal of the claim petition.

Both the parties who are duly represented by their respective learned counsel, shall appear before the learned Railway Claims Tribunal, Guwahati

Bench, Guwahati on

04.2018 and by producing a certified copy of this order, shall seek further instructions from the said learned Tribunal.

Let the LCR be returned forthwith.

The parties are left to bear their own costs.