Radheushyam Pandey vs Union Of India & Ors

This writ petition carries a reiteration of the facts as presented before this Court in W.P. 8881(W) of 2019. In Re: National Carrying Corporation, a partnership firm & Anr. vs. Union of India & Ors., which was adjudicated at the first stage by this Court vide Order dated 3rd May, 2019.The petitioner-in-person files an Affidavit-of-Service showing service of the writ petition on the Respondents/Eastern Railway (ER). The petitioner submits that having regard to the exigencies of Court proceedings as existing on date, the writ petition has been filed in person.

From a perusal of the record the submission of the petitioner appears to be factually acceptable. Affidavit-of-Service, as filed, is also taken on record.

The petitioner submits that he is part of a subsisting agreement with the Respondents/ER for leasing of a Parcel Van in Train No. 13020/13019 Ex-Kathgodam to Howrah. The petitioner further submits that the Parcel Van was weighed by the Respondents/ ER prior to its entry into its terminus station at Howrah via in-motion weighment and found to be beyond the contracted weight. The petitioner relies on a Supplementary Affidavit, which has been served on the Respondents/ ER and filed before Court today, to demonstrate that the said Parcel Van contains lifesaving drugs which have a delivery period of seven days from the invoice dated 28th April, 2019. The petitioner submits that the in-motion weighment being contrary to law, the detained Parcel Van be released forthwith.

Supplementary Affidavit as filed by the petitioner is allowed to be taken on record. On a perusal of the record as well as the statements made connected to the Parcel Van being loaded with lifesaving drugs at Paragraph 5 of the writ petition, this Court is of the view that this writ petition deserves to be considered on a priority basis.

On behalf of the Respondents/ER, Mr. Mishra, with Mr. Mathew, appear-in-person. The Respondents /ER produce documents connected to the in-motion weighment to demonstrate that the Parcel Van in issue is excessively weighed beyond weight stipulated in the agreement. In such view of the matter, the Respondents/ER insist that the petitioner pay the punitive charges.

Having considered the submissions made and the materials on record, this Court is satisfied that this matter deserves to be dealt with in terms of the almost pari materia findings of this Court vide its Order dated 27th March, 2019 in W.P. 6753(W) of 2019. Accordingly, for the benefit of this discussion the Order dated 27thMarch, 2019 is reproduced below:

W.P. 6753(W) of 2019[Harish Sharma vs. Union of India & Ors.]

Mr. Debrup Bhattacharjee...for the petitionerMr. Mahendra Prasad GuptaMr. M.K. Bandyopadhyay ....for the Union of IndiaParty/Parties is/are represented in the order of their name/names as printed above in the cause-title.

The short grievance raised by the petitioner relates to a finding by the Respondents/Railways, more specifically the South Eastern Railway (SER), Khargapur Division, charging the petitioner, who is a parcel van operator under a contract with the SER, of excess loading of the parcel van to the extent of 3.20 tons.

The petitioner is aggrieved by the communication of the SER dated 17th March, 2019 from Shalimar Parcel Office demanding payment of punitive charges of Rs.1,50,942/- qua the alleged overloading.

Mr. Bhattacharjee, learned Advocate for the petitioner, relies upon a Final Order of this Court dated the 9th of July, 2015 in W.P. 15460(W) of 2015. It is emphasised by learned Advocate for the petitioner that by the Order of 9th July, 2015 (supra) this Court applied its mind to the scope of the statutory provision contained in Section 79 of the Railways Act, 1989 (for short the 1989 Act). The relevant discussion in the order of 9th July, 2015 which, in turn, is also relevant for the present discussion reads as follows:-

"Having heard the parties and considering the documents on record as well as the law on the point, this Court finds that on reading of the proviso to Section 79 of The Railways Act, 1989, as sought to be argued by Sri Das in Court today, it is noticed that the statutory restriction to reweighment of goods booked at owner's risk rate may not apply in case where an authorised Railway official considers it necessary to carry out such reweighment. Similarly, assuming Sri Das's argument for the moment that the circular of the Railway Board dated 15th April, 2014 now supersedes all previous circulars in all respects, a second weighment may not be permitted at the party's request but, does not exclude the discretion of an authorised Railway official to allow such second weighment even in the case of goods being carried at owners' risk rate.

In the facts of the present case this Court is of the opinion that the claim to second weighment by the petitioner is bonafide. This Court is of the further opinion that a competent Railway official could have exercised proper discretion within the statutory prescription under Section 79 of The Railways Act (supra) and take a prompt and appropriate decision in the matter pursuant to receipt of the representation of the petitioner on the same date on which the wagon was found to be weighed in excess.

As a consignee the petitioner cannot be faulted for expression of his anxiety to have the wagon with its materials at his disposal upon compliance of all formalities qua the Railways."

Accordingly, by the order of 9th July, 2015 this Court directed as follows:"It is, therefore, directed that the petitioner shall furnish all charges, including demurrage, penalty etc. with the Railway Administration by tomorrow, that is the 10th July, 2015. The competent Railway official shall take a decision on the reweighment in the light of the observations made by this Court above and complete the same by 15th July, 2015.

In the event the weighment is found to be in excess the Railway shall be entitled to forfeit the dues charges, demurrage etc. as per law, already deposited by the petitioner. However, in the event the excess weighment is found to be in error the account shall be adjusted with the petitioner by the Railway within a further period of one week thereafter.

In the further opinion of this Court the order passed today is in accordance with the reference answered by an Hon'ble Special Bench of this Court by judgment dated 25th February, 2015 in FMA 317 of 2001 in the matter of Union of India vs. Biswanath Agarwal.

Since no affidavit-in-opposition has been used by the respondents, the allegations made in this writ petition are deemed not to have been admitted.

W.P. No. 15460(W) of 2015 stands accordingly disposed of."

On behalf of the Respondents/SER, Mr. Gupta, learned Counsel appears and points out that Section 79 of the 1989 Act permits the competent Railway Official to exercise discretion in the matter of reweighment. Referring to the facts of the present case learned Railway Counsel submits that the petitioner sought reweighment by a communication dated 18th March, 2019 which was shown to be received by the SER on 19th March, 2019, i.e. the next day and, the writ petition has been filed immediately thereafter on the 20th of March, 2019.

Therefore, the stand is taken by learned Railway Counsel that the writ is premature. The further stand is taken by learned Railway Counsel that the claim of the petitioner that the parcel van is carrying lifesaving drugs and therefore requires an early release is a statement at the Bar meant to draw the sympathy of this Court.

Having heard the parties and considering the materials placed, this Court, in the context of the present facts, finds no reason to take a view different from the view taken by it qua Section 79 of the 1989 Act vide its Order of 9th July, 2015.

Therefore, this Court reiterates the operative portion of the order dated 9th July, 2015 to be also applicable to the facts of this case.

The petitioner shall accordingly pay the punitive charges as demanded by the Respondents/SER vide its communication dated 17th March, 2019 within the close of working hours tomorrow.

On receipt of the punitive charges the authorised Railway Official shall take a decision on the reweighment sought by the petitioner in the light of the above referred observations.

In the event, upon reweighment the weight of the parcel van is found to be in excess, the Railways shall be entitled to forfeit the punitive charges and the petitioner shall arrange to offload the excess as instructed through the communication dated 17th March, 2019.

However, in the event the reweighment is found to be in error, the petitioner shall be entitled to adjustment of his dues.

It is expected that the above directed exercise be completed not later than a period of seven days from the date of deposit of punitive charges as also directed above.

W.P. 6753(W) of 2019 stands thus disposed of.

Since Affidavits are not invited, allegations made are deemed to be denied.

Liberty is granted to the parties to act on a gist of the communication of this order.

Urgent certified photocopies of this order, if applied for, be given to the parties upon compliance of all necessary formalities."

In the light of the above referred Order dated 27th March, 2019, this Court directs as follows:-

I) The petitioner shall deposit the punitive charges as raised by the Respondents/ER vide their communication dated 2nd May, 2019 as produced in Court today withinthe close of working hours tomorrow.II) On receipt of the punitive charges the authorised official of the Respondents/ER shall take a decision on the reweighment sought by the petitioner in the light of theabove recorded observations in the Order dated 27th March, 2019 (supra).III) In the event the weight of the Parcel Van is still found to be in excess in terms of II) above, the Respondents/ER shall be entitled to forfeit the punitive charges.IV) In the event, the weight of the Parcel Van in terms of II) above is found to be error free, the petitioner shall be entitled to claim adjustments against his dues.V) On deposit of the punitive charges and, upon compliance of II) above, the Respondents/ER shall release the Parcel Van in favour of the petitioner not later than two working days after the date of deposit of the punitive charges by the petitioner.

W.P. 9470(W) of 2019 stands accordingly disposed of.

Since Affidavits are not invited, allegations made shall be deemed to be denied.

Documents filed today on behalf of the Respondents/ER be also kept with the record.

Urgent certified photocopies of this order, if applied for, be given to the parties upon compliance of all necessary formalities.