Union of India vs Shree Mahalaxmi Mills and Anr

Mridul Kumar Kalita, J

[1] Heard Mr. G. Goswami, the learned Standing Counsel, N.F. Railways, appearing for the appellant. Also heard Mr. Divyansh Rathi, the learned counsel for the respondents.

[2] This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 has been filed against the common Judgment and Order dated 24.11.2016 passed by the Railway Claims Tribunal, Guwahati Bench in Original Application No. 479/2007, whereby the Railway Claims Tribunal has directed the present appellant to refund the under charges and demurrage charges imposed on the respondent No. 1 by the appellant, along with an interest @ 9% per annum from the date of filing of the original application till the date of realization.

[3] The facts relevant for consideration of this appeal, in brief, are that the respondent No. 1 had booked a consignment from Tilda (TLD) to the destination i.e., New Guwahati (NGC). The consignment booked by the respondent No. 1 said to contain 3,760 quintals of rice. The said consignment was booked @ Rs.109.46 per quintal.

[4] It is also stated that the distance between the originating station i.e. Tilda (TLD) to the destination i.e. New Guwahati (NGC) is 1570 kms and the freight calculated on the aforesaid consignment was to the tune of Rs.4,11,570/-. However, the present appellant owing to excess weight of the aforesaid consignment imposed the penal undercharges to the tune of Rs. 31,733 as well as demurrage charges at the destination station to the tune of Rs.20,475/- and thereby, the respondent No. 1 was made to pay an excess charge of Rs.57,962/-.

[5] The present respondent filed an original application before the Railway Claims Tribunal, Guwahati Bench claiming refund of the excess freight charges paid by him. The said original application was registered as Original Application No. 479/2007. The said original application was taken up by the Railway Claims Tribunal, along with 45 other original applications where similar questions of law was involved. Ultimately, by the impugned judgment dated 24.11.2016, the Railway Claims Tribunal directed the present appellants to refund the excess charges imposed on the respondent No. 1, along with the simple interest @ 9% per annum.

[6] Mr. G. Goswami, the learned Standing Counsel for the appellant has submitted that the respondent authority had lawfully imposed the punitive charges for overloading the wagon by the respondent No.1. He submits that though, a full bench of this Court in the case of the Megha Technical & Engineers (Pvt.) Ltd. Vs. The Union of India & Ors. , W.A. No. 333/2010 had held that under Section 73 of the Railways Act, 1989, punitive charges cannot be imposed without affording an opportunity of being heard to the person on whom the charges were sought to be imposed, however, recently the Apex Court in the Judgment of Union of India Vs. Megha Technical & Engineers (Pvt.) Ltd. (SLP (c) No. 8024/2018) has set aside the aforesaid judgment of the full bench of this court and has held that when excess weightage has been detected at the time of offloading, it would be practically difficult for the railways to issue a show-cause notice to consignor or the consignee and to hold a mini trial to determine the question of excess weight and levy of compensatory charges. He, therefore, submits that the railways were well within their right to impose the punitive charge for overloading of the wagons by the respondent No. 1.

[7] He submits that the impugned judgment of the Railway Claims Tribunal is also bad in as much as it failed to take into consideration that burden of proving that the weight declared by the consignor, at the time of issuance of railway receipt to him is the correct weight of the consignment and that no penal freight should be imposed, is on the applicant, who moves the original application before the Railway Claims Tribunal in view of the provisions of Section 110 of the Railways Act, 1989. He submits that the Railway Claims Tribunal has erred by holding that it was the burden of the appellant to prove that there was overloading of the consignment as Section 110 of the Railways Act, 1989 cast such burden on the person claiming compensation.

[8] The learned Standing Counsel for the appellant further submits that though railway receipts are prima facie evidence of the weight and number of packages stated in the said receipt, however, in a case where the consignment in a wagon load and the weight or number of packages is not checked by a railway servant authorized in this behalf and a statement to that effect is recorded in such railway receipt the burden of proving the weight, or as the case may be the numbers of packages stated therein shall lie on the consigner.

[9] He submits that in the instant case in the railway receipt produced by the respondent No. 1 before the Railway Claims Tribunal clearly shows that the said receipts were issued without any supervision by any of the railway officials and hence, it was incumbent on the respondent No. 1 to prove the weight of the consignment in the proceedings before the Railway Tribunal.

[10] He submits that as the respondent as original applicant before the Railway Claims Tribunal had failed to relieve the burden cast on him under the proviso to Section 65 (2) as well as Section 110 of the Railways Act, 1989 the Tribunal was wrong in allowing the original application by shifting the burden to the union of India.

[11] In support of his submission, the learned Standing Counsel for the appellant has cited following rulings: -

i. Union of India Vs. Megha Technical & Engineers (Pvt.) Ltd. (supra);

ii. Union of India Vs. M/s Indian Oil Corporation Limited [judgment dated 06.01.2026 in MFA No. 76/2014.]

[12] The learned Standing Counsel for the appellant has also produced during the course of hearing a copy of theweighment chart, wherein, he claims the excess weight in case of the consignment booked by respondent No. 1 has been mentioned, however, he fairly submits that said weighment chartwas not produced by the Railways before the Railway Claims Tribunal as reflected in the impugned judgment.

[13] He further submits that though a discovery application was filed by the respondent No.1 before the Railway Claims Tribunal, however, the railway are not required to preserve the documents, relating to booking of consignment beyond six months. In support of his submissions, he has cited a ruling of this court in the case of The Union of India Vs. M/S Shree Gopal Enterprises in MFA Case No. 269/2010.

[14] He submits that the appellant has legally imposed the punitive charges on therespondent No. 1, when the consignment book by him was found to be excess, when same was weighedbefore the destination station by the railways, hence, he submits that the Railway Claims Tribunal had erred in allowing the original application filed by the respondent No. 1. He, therefore, submits that this appeal may be allowed and the impugned judgment of the Railway Claims Tribunal may be set aside.

[15] On the other hand, Mr. D. Rathi, the learned counsel for the respondent No. 1, has submitted that the Tribunal has rightly allowed the original application filed by the respondent No. 1, as appellant had failed to adduce any evidence before the Railway Claims Tribunal to prove that the assignment booked by the respondent No. 1 was in excess of the weight mentioned in the railway receipt.

[16] He submits that, even assuming, but not admitting that if the consignment was found to be overweight, when weighed by the Railways, it was incumbent upon the appellant authority under the proviso Section 73 of the Railway s Act, 1989 that it should have unloaded the excess amount and recovered cost of such unloading and any charge for detention of wagon in that regard, however, nothing of that sort was done in this case which belies the claim of railway authority regarding overloading of the consignment by the respondent No. 1.

[17] The learned counsel for the respondent No. 1 submits that though in some of the original applications, which were taken up along with the original application filed by the present respondent, the railways had filed some documents in support of its contention, however, as regards the present respondent No 1 is concerned, they did not file even a single document in support of their contention. He submits that the Railway Claims Tribunal was right in holding that the railways (present appellant) had failed to prove that there was an overloading of consignment as no evidence was adduced by the railways before the Railway Claims Tribunal.

[18] The learned counsel for the respondent No. 1 has also submitted that before the Railway Claims Tribunal, in the proceeding of original application No. 479/2007, the present respondent No. 1 had also filed an application for discovery of documents under Section 18(3)(b) of the Railway Claims Tribunal Act, 1987. However, the railways failed to produce even a single document. He also submits that since the appellant has failed to abide by the order of the Railway Claims Tribunal Act, 1987 regarding discovery application filed by the present respondent No. 1 before the Railway Claims Tribunal Act, 1987 and adverse inference may be drawn against the railways that they do not possess any such document.

[19] He also submits that though the judgment of the full bench of this court in the case of Megha Technical & Engineers (Pvt.) Ltd. Vs. The Union of India &Ors. (supra) has been set aside by the Apex Court in the case cited by the learned Standing Counsel of Railways. However, he submits that the facts of the said case are distinguishable from the facts of the instant case in as much as in the said case the Apex Court observed that when the excess weight has been detected at the time of offloading, it would be practically difficult for the railways to issue show-cause notice. Whereas, in the instant case, no offloading was done and it was the claim of the railways that excess weight was found when the wagons were weight in between the originating station and the destination station and nothing was informed to the respondent No. 1 regarding the basis of imposing punitive charges under Section 73 of the Railways Act, 1989. He, therefore, submits that the Railway Claims Tribunal has rightly directed the railways to refund the punitive charge as well as demurrage imposed on the appellant and same needs no interference by this court.

[20] I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record, including the original records received before the Railway Claims Tribunal Act, 1987. I have also gone through the rulings cited by the learned counsel for both sides.

[21] After going through the judgment of the Supreme Court of India delivered in the case of Union of India Vs. Megha Technical & Engineers (Pvt.) Ltd. (supra), it appears that though by the said judgment the judgment delivered by the full bench of this court in Writ Appeal No. 333 / 2010 was set aside, however, it was not held in the said judgment that no opportunity of hearing ought to be given before imposing penalty on account of excess weight being detected in a consignment. It has only recognized the practical difficulties in doing so at the time of offloading when such excess weight has been detected, rather the Apex Court in the aforesaid judgment has emphasized the need for developing and introducing effective scientific methods to prove allegations of the excess weight by the Indian Railways.

[22] It is further pertinent to note that in the said case after finding that the judgment passed by the full bench of this court which was impugned before the Apex Court in the aforesaid case was complied with by the railways and a show cause notice was issued to the respondent, the Apex Court found the impugned judgment to be obsolete and redundant and, therefore, it was set aside. However, it observed that the railways must have introduced some effective scientific method to meet with such challenges. The challenge before the court was whether the consigner or the consignee is entitled to an opportunity of hearing before imposition of penalty on account of excess weight being detected in a consignment. This court is of considered opinion that such opportunity has not been ruled out in the case of Union of India Vs. Megha Technical & Engineers (Pvt.) Ltd. (supra), by the Apex Court rather the Apex Court has emphasized on more effective scientific method to meet the said challenge.

[23] In the instant case, it appears that under charges of Rs.31,733/-(Rupees Thirty One Thousand Seven Hundred and Thirty Three only)as well as demurrage charges of Rs.20,475/- (Rupees Twenty Thousand Four Hundred and Seventy Five only) were imposed on the respondent No.1, in addition to the freight charges of Rs. 4,11,570/-(Rupees Four Lakhs Eleven Thousand Five Hundred and Seventy).

[24] On perusal of the records of this case, it appears that the respondent No. 1, in addition to the copies of railway receipts, which indicates that the consignment booked by the respondent No. 1said to contain 3,760 quintals of rice, has also submitted sale invoice issued by Agrawal Foods and Goyal Udyog, as well as money receipts against the same, which also indicates the same quantity of rice. As such the burden cast on the claimant by statute was relieved by the respondent No. 1. Whereas, the present appellant produced no documents before the Railway Claims Tribunal not even the weighment chartwhich could have shown the excess weight of the consignment by the respondent No. 1. The appellant has failed to rebut the evidence adduced by the respondent No.1 in form of railway receipt, sale invoices and money receipts to show that the weight of the consignment as mentioned in the railway receipt where the correct weight.

[25] In the case of Jagjit Cotton Textile Mills Vs. Chief Commercial Superintendent N.R. and Ors. reported in (1998) 5 SCC 126 the Supreme Court of India has upheld the validity of Section 73 of the Railways Act, 1989 and held that the said provision is not violative of the Article 14 of the Constitution of India. It recognized the railway's right to impose punitive charges in case of excess weight is found in a consignment, However, in the said case also, it has not ruled out the right of the consignor or consignee to know as to how much excess weight was found by the railway and on what basis such excess weight is alleged. The right of giving an opportunity of hearing was not ruled out by the Apex Court, while deciding the validity of the provisions contained in Section 73 of the Railways Act, 1989.

[26] In the instant case, though the learned Standing Counsel for Railways had produced a photocopy of weighment chartat the hearing of this appeal, however, no such document was available in the record before the Tribunal when the impugned judgment was passed. Neither there is any indication that at any point of time such weighment chartwas furnished to the respondent No. 1, therefore, there is no materials on record to indicate on what basis the railways imposed punitive charges, and, how much excess weight was found by the railways. As such, this court is of considered opinion that the Railway Claims Tribunal has not erred in directing the appellant to refund the under charges and demurrage charges paid by the respondent No.1 for which no basis exists in the records before this court or before the Railway Claims Tribunal.

[27] In view of the discussions made and reason cited in the foregoing paragraphs, this court is of considered opinion that this appeal lacks merit.

[28] This appeal is, accordingly, dismissed.

[29] Send back the records of the original application to the Railway Claims Tribunal, along with a copy of this judgment.