Union of India vs Ankur Business P Ltd and Anr

[1] Heard Ms. U. Chakraborty, the learned Senior Railway Counsel, assisted by Mr. G. Goswami, the learned counsel appearing for the appellant. Also heard Mr. D. Rathi, the learned counsel for the respondents/claimants.

[2] This appeal, under section 23 of the Railway Claims Tribunal Act, 1987, has been preferred against the judgment and order dated 24.11.2016, passed by the Railway Claims Tribunal, Guwahati Bench, in Original Application No. 88/2006, whereby the appellant was directed to refund the punitive charges imposed on the respondents/claimants for overloading of the consignment.

[3] The facts relevant for consideration of the instant appeal, in brief, are that the respondent No. 1, namely, M/s Ankur Business (P) Ltd., had filed an original application which was registered as Original Application No. 88/2006, before the Railway Claims Tribunal, Guwahati Bench, seeking refund of excess freight charges of Rs. 91,377/- (Rupees Ninety-One Thousand Three Hundred and Seventy Seven) only which was imposed on them by the present appellant, as overloading charges. The claimants (respondent No. 1) had booked a consignment of refined Salt from Chirai(CHIB) under Western Railways to New Guwahati (NGC) under invoice No. 8 and 10 RR(Railway Receipt) No. 220466 and 220468 dated 12.07.2005. The Railway collected the under charges of Rs. 38939/- on 21.08.2005 on the allegation of over-loading detected en-route.

[4] The present appellant contested the claim case by filing separate written statement, wherein, it took the plea that since weighment facilities were not available at the original station, the weighment was done en-route in the weighbridge at Viramgram (VG) Station of Western Railway and it was found that the excess load was there in the wagons.

[5] On the basis of the pleadings of the parties, following issues were framed by the Railway Claims Tribunal: -

[6] The Railway Claims Tribunal, Guwahati, thereafter disposed of the aforesaid Original Application No. 88/2006, along with 45 other similar matters by a common judgment on the ground that similar question of law and facts were involved in all the 46 claims cases and directed the present appellant to refund the excess freight of Rs. 91,377/-(however, in page No. 21 of the impugned judgment wherein, the calculation of excess freight to be referenced by has been made against Original Application No. 88/2006, it indicates that the freight over charged was only to the tune of Rs. 81,377/-).

[7] Ms. U. Chakraborty, the learned Senior Railway Counsel, appearing for the appellant, submits that the Railway Claims Tribunal has erred in passing a common judgment for 45 Original Applications, wherein the facts were different and issues involved were also different. She submits that under Rule 24 of the Railway Claims Tribunal (Procedure) Rules, 1989, the two or more applications pending before the Tribunal can be heard simultaneously only if they arise out of same facts and issues involved are common in such applications. She submits that in the instant case, facts involved in all the 45 applications were different, though there might be some similarities in some aspects. She submits that as the facts were not same, the Railway Claims Tribunal could not have invoked Rule 24 of the Railway Claims Tribunal (Procedure) Rules, 1989, and could not have disposed of the Original Application No. 88/2006, by clubbing it with 44 other applications in a common judgment.

[8] She further submits that the impugned judgment is also liable to be set aside on the ground that same was delivered by only a single member of the Railway Claims Tribunal, which is contrary to the requirement contained in Section 4 of the Railway Claims Tribunal Act, 1987 which provides that a bench of the Railway Claims Tribunal shall consists of one judicial member and one technical member. She submits that though Section 4(4) of the Railway Claims Tribunal Act, 1987 provides that chairman of the Tribunal may by General or Special Order authorize a single member to exercise the power and authority of Railway Claims Tribunal in respect of some cases, however, she submits that in the instant case, no such authority was there and, therefore, she submits that on that count also the impugned judgment is liable to be set aside.

[9] The learned Senior Standing Counsel, Railway, appearing for the appellant further submits that the Railway Claims Tribunal also failed to take into consideration that while imposing punitive charges for overloading no notice is required to be given to the claimant as held by a division bench of this court in the case of “Union of India & Ors. Vs. Megha Technical & Engineers (Pvt.) Ltd.” reported in “SLP (C) 8024/2018”.

[10] She submits that though a full bench of this court in the case of “Megha Technical and Engineers Pvt. Ltd. Vs. Union of India” (Writ Appeal No. 333/2010) held that under Section 73 of the Railway Claims Tribunal Act, 1987 punitive charges cannot be imposed without affording an opportunity of being heard to the person on whom charges were sought to be imposed, however, she submits that the Supreme Court of India in the case of “Union of India & Ors. Vs. Megha Technical & Engineers (Pvt.) Ltd.” (supra) has set aside the judgment of the full bench of this court and held that when excess charges weightage is detected at the time of off loading it would be practically difficult for the railways to issue a show-cause notice to consigner or the consignee and to hold a mini trial to determine the question of levy of compensatory charges for excess freight.” Therefore, she submits that the appellant, i.e., the Railway were well within their right to impose punitive charges for overloading of wagons by the respondent No. 1.

[11] She further submits that in the instant case, the weighment charts were furnished to the respondent No. 1 indicating the excess weight and as such, she submits that it was for the respondent No. 1 to prove anything contrary to that as the burden of proving that there was no excess weight shifts to the respondent No. 1 under Section 110 read with Section 65 of the Railways Act, 1989.

[12] She further submits that since the weighment chart showing excess weight was furnished to the respondent No. 1, the respondent No. 1 could have requested for re-weighment of the consignment under Section 79 of the Railways Act, 1989. She, therefore, submits that this appeal may be allowed and the impugned judgment may be set aside and the case may be remanded back to the Tribunal for fresh disposal in accordance with the provisions of law

[13] On the other hand, Mr. D. Rathi, the learned counsel for the respondent No. 1/claimant, has submitted that the Railway Claims Tribunal has rightly allowed the claim of the respondent No. 1 for refund of excess freight after considering the materials on record in its true perspective.

[14] He submits that the Railways have failed to prove the alleged overloading for which excessive freight was charged from the respondent No. 1. He submits that in spite of the direction by the Railway Claims Tribunal, the appellant has failed to produce relevant documents like original forwarding notes, loading tally book, unloading tally book, delivery deficiency message, details of disposal of alleged excess goods, full delivery records, proper weighment records, and show-cause notice allegedly issued before levying punitive charges.

[15] The learned counsel for respondent No. 1/claimant has also submitted that the Railways have also erred in imposing punitive charges on the respondent No. 1 after delivery of the consignment. He submits that the consignment arrived at destination and was delivered on 20.06.2005, whereas, the railway authorities issued the demand notice on 24.06.2005, i.e., after delivery of consignment. He submits that it is settled proposition of law that a notice demanding additional amount for alleged excess weight/overloading can be issued only at a pre-delivery stage, and once the delivery is made, the provisions contained in the Railways Act do not empower the Railways to issue notice claiming penal charges for overloading.

[16] The learned counsel for respondent No. 1 also submits that the penal charges were imposed on the respondent No. 1/claimant without prior issuance of any show-cause notice to that effect, and as such, the principles of natural justice have been violated and the respondents was not given any opportunity of being heard before imposing penal charges on him for purported overloading.

[17] The learned counsel for the respondent No. 1/claimant also submits that the contention of the appellant that the Tribunal could not have passed the common judgment because of the embargo under Rule 24 of the Railway Claims Tribunal (Procedure) Rules, 1989, is also misconceived, inasmuch as, though the Tribunal decided 46 Original Applications by a common judgment, however, it did not decide the matters mechanically and has considered each Original Application on its own merit. He submits that the Tribunal was not wrong in deciding those cases by a common judgment as it involved similar questions of law and facts. He submits that on bare perusal of the impugned judgment, it would reveal that the Tribunal decided all the 46 Original Applications by a common judgment as the same was also agreed to by the learned counsel for both sides. He further submits that the appellant has also failed to show any prejudice caused to them by the Tribunal in deciding the Original Application No. 88/2006 by a common judgment along with other 45 similar Original Applications. As such, he submits that the contention raised by the appellant is liable to be rejected.

[18] The learned counsel for respondent No. 1/claimant further submits that the impugned judgment is also not bad on the ground that it was rendered by only a single member of the Railway Claims Tribunal, inasmuch as the said member in the instant case was a Judicial Member. He submits that the Apex Court in the case of “State of M.P. Vs. B.R. Thakare And Ors.” reported in “(2002) 10 SCC 338,” has observed that even assuming that all the powers of Tribunal could be exercised by any single member, it can be by a Judicial Member of Tribunal only. He submits that in the instant case, as the impugned judgment was rendered by a Judicial Member of Railway Claims Tribunal sitting singly, there is no error or infirmity in the same.

[19] He further submits that this Court in an appeal under Section 23 of the Railway Claims Tribunal Act can decide the matter after taking into consideration the materials before it as it is exercising powers of a first appellate court, which can go into the question of law as well as that of fact in such an appeal. He submits that the contentions raised by the appellant do not have any merit and, therefore, he prays for dismissing the appeal.

[20] In support of his submission, the learned counsel for respondent No. 1/claimant has cited following rulings:

[21] I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by learned counsel for both sides in support of their respective submissions.

[22] Before going into the merits of this appeal, it would be appropriate to decide the question regarding the jurisdictional aspects at the very beginning. For the said purpose, it would be convenient if the provisions contained in the Section 4 of The Railway Claims Tribunal Act, 1987 is reproduced herein below:-

[23] On a bare perusal of the aforesaid provisions, it appears that the statute mandates that a Bench of Railway Claims Tribunal shall consist of one Judicial Member and one Technical Member. However, the statute in Section 4(4) also provides for an exception thereto, whereby it provides that it shall be competent for the Chairman or any other Member authorized by the Chairman in this behalf to function as a Bench consisting of a single Member, and the jurisdiction, powers and authority of the Claims Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify.

[24] Thus, for a single Member to act as a Bench of Claims Tribunal and exercise its jurisdiction, it is required that if the Chairman himself is not sitting singly and exercising jurisdiction, powers and authority of Claims Tribunal, any other Member has to be authorized by the Chairman in that behalf for sitting singly. Further, such authority, by general or special order, shall have to specify the classes of cases or such matter pertaining to such classes of cases in respect of which a Bench consisting of single Member may exercise the jurisdiction, power and authority of the Claims Tribunal.

[25] As such, it is incumbent on any Member sitting singly as a Bench of the Railway Claims Tribunal and exercising powers thereof to specify the general and special order which has given it the authority to decide cases by sitting singly. In the instant case, no such authorization or general or special order of the Chairman authorizing the single Member to exercise the jurisdiction, powers and authority of Claims Tribunal has been produced before this Court. As such, it appears that the exercise of jurisdiction, powers and authority of the Claims Tribunal by the single Member of the Railway Claims Tribunal, Guwahati Bench, in the instant case, is contrary to the provisions contained in Section 4(2) and Section 4(4) of the Railway Claims Tribunal Act, 1987.

[26] It is pertinent to note herein that in the instant case, the Member who has delivered the impugned judgment is a Judicial Member. However, the statute does not discriminate amongst Members of the Railway Claims Tribunal, and it would be wrong to assume that when a Judicial Member exercises jurisdiction, powers and authority of the Claims Tribunal, by sitting singly, no authority under Section 4(4) of the Railway Claims Tribunal Act is required. The statute does not provide for any such exception in respect of a Judicial Member.

[27] In this regard, the ruling cited by the learned counsel for the respondent/claimant of the Apex Court in the case of “State of M.P. Vs. B.R. Thakare And Ors” (supra) is not of much aid to the claimant, as in the said case, the Apex Court was dealing with the provisions of Madhya Pradesh Administrative Tribunals Act, 1985 and has observed that even assuming that all the powers of the Tribunal could be exercised by a single Member, it can only be by a Judicial Member of the Tribunal and not by any other Member. By observing as such, the Apex Court was only contemplating a situation on the basis of assumption that the powers of the Tribunal under the aforesaid Act could be exercised by a single Member. However, the provisions of Railway Claims Tribunal Act, 1987 do not provide for any other circumstances, apart from what has been contemplated under Section 4(4) of the said Act, when a Member sitting singly can exercise the powers, jurisdiction and authority of Claims Tribunal.

[28] For exercising such power, a Member sitting singly has to be authorized as such by the Chairman of the Railway Claims Tribunal under Section 4(4) of the Railway Claims Tribunal Act, 1987, and in absence thereof, any exercise of jurisdiction by a Member sitting singly would be an illegal exercise of jurisdiction. Under such circumstances, only two consequences are contemplated: that is, either the single Member has to be authorized under Section 4(4) to act as a Bench sitting singly by the Chairman of the Tribunal, or the matter has to be heard by a Bench consisting of two Members, namely, Judicial Member and Technical Member both.

[29] In view of the above discussion, this Court is unable to persuade itself with the submissions made by the learned counsel for the respondent No. 1/claimant that there is no error of jurisdiction in a Judicial Member sitting singly and deciding the claims cases without there being any authorization for the same under Section 4(4) of the Railway Claims Tribunal Act, 1987.

[30] Now, let us discuss as to whether the Tribunal was right in hearing 46 Original Applications together on the ground that similar questions of law and facts are involved in those 46 Original Applications and deciding those Original Applications by rendering a common judgment. In this regard, the provisions contained in Rule 24 of the Railway Claims Tribunal (Procedure) Rules, 1989 is relevant and, as such, the same is reproduced herein below:-

[31] On perusal of the aforesaid provisions, there remains no doubt that for hearing two or more original applications together, two conditions are prerequisites, namely, that those applications must arise out of the same facts, and secondly, the issue involved is common to them. Both the conditions mentioned in the aforesaid Rule should exist together for the Tribunal to decide to hear two or more applications pending before it simultaneously.

[32] The first requisite condition is that two or more applications pending before the Tribunal must arise out of the same facts. The requirement under Rule 24 of the Railway Claims Tribunal (Procedure) Rules, 1989 of the applications arising out of the same facts may not be confused with similarity of facts in different original applications. What is required for simultaneous hearing is that the applications must arise out of same facts and not similar facts. However, in the instant case, all the 46 Original Applications decided by the Railway Claims Tribunal, Guwahati Bench, by the common judgment which has been impugned in this appeal, have different facts, like the consignors and the consignees are different, the consignment is of different quantity and quality, the originating station and destination station are different, the money involved is different, and the punitive charges imposed are also different. Merely because the Railway imposed punitive charges in all the 41 cases, the same may not be clubbed together and decided by a common judgment after hearing them simultaneously, as the same would be contrary to the procedure laid down by the Railway Claims Tribunal (Procedure) Rules, 1989.

[33] When the Railway Claims Tribunal (Procedure) Rules, 1989 lays down the procedure to be adopted while adjudicating an application under Section 16 of the Railway Claims Tribunal Act, 1987, the said procedure has to be adopted and no tinkering with the same can be done at the whims and caprices of the Tribunal. As Rule 24 prescribes the contingencies under which two or more applications pending before the Tribunal may be heard simultaneously, the prerequisite conditions prescribed in the said Rule must be fulfilled for two or more applications pending before the Tribunal to be heard simultaneously. The Tribunal, on its own, cannot decide to hear two or more applications simultaneously, which arose out of different facts.

[34] Each claim application before the Railway Claims Tribunal represents a distinct legal cause of action requiring independent appreciation of evidence by the Tribunal. Simultaneous handling of such a large number of applications in contravention of the Rules risks cross-contamination of evidence, that is, where proof meant for one set of facts is improperly imported or generalized to resolve a completely different factual scenario, leading to potential miscarriage of justice for either the claimant or the Railway Administration. As such, such procedural overreach in violation of the prescribed Rules cannot be approved.

[35] In view of the aforesaid discussion, where the jurisdictional overreach by the Railway Claims Tribunal in deciding the Original Application No. 88/2006 along with 45 other Original Applications, where facts involved were not the same, is apparent, the matter is remanded back to the Railway Claims Tribunal for rendering a fresh judgmentin the Original Application No. 88/2006 after giving fresh opportunity of being heard to both the parties.

[36] This appeal is, accordingly, allowed.

[37] Send back the records of Original Application No. 88/2006 to the Railway Claims Tribunal, Guwahati Bench, along with a copy of this judgment immediately.