NIRMAL TRADERS Vs. UNION OF INDIA

JUDGEMENT

(1.) Whether the railway administration has unfettered power to re-weigh goods booked with the railways en-route behind the back of the consignee or endorsee in exercise of their powers under Section 78 of the Indian Railways Act and whether the railway administration has also unbridled discretion under Section 79 of the said Act not to re-weigh, on the request of the consignee or endorsee, such a re-weighed consignment are the two moot questions, which this writ petition has raised.

(2.) In the above backdrop, the case of the petitioner needs to be considered. Petitioner's case, briefly stated, runs as follows :- In the course of its business, the petitioner has booked 40 BCN Wagons as per the rake programme sponsored by the Government of Punjab on 17-18 of November, 1999. The coal was loaded at Ledo Railway Station in the District of Tinsukia(Assam), its destination being Bathinda. The said rake of coal was weighed at Electronic-in-Motion Weigh Bridge, at Ledo, in presence of representatives of North Eastern Coal Fields/Coal India Limited and the representatives of the railway authorities, the Wagon having been booked by North Eastern Coal Fields/Coal India Limited, which is a Government of India undertaking. The said weigh bridge stood checked and certified, on 25.5.99, to be in order, the next date for verification being on 25.5.2000.The railway authorities from time to time issued circulars regarding loading and weighment of coal at various stations. In accordance with their policy, Circular No.1 of 1997 was issued by the respondents to the Joint Commercial and Operating Circular with regard to weighment of coal loaded at electronic-in-motion Weigh Bridge at Ledo. In the said circular, the procedure/instructions were given regarding weighment of coal rake at weigh bridge. According to this circular, the railway staff issues receipt on the strength of weighment chart received from the computer at the said bridge making it, however, clear that the excess weight, if any, beyond the permissible limit will be charged as per the commercial rules, one of the conditions of weighment being that one commercial staff from the Railways will witness the weighment at the computer round the clock and jointly counter-sign the weight, so found, along with the operator of the computer. The relevant circular has been annexed as Annexure II to the writ petition. After weighment of the coal aforementioned, the petitioner duly paid the charges. The loaded coal was, however, found to be in excess of permissible limit in some BCN Wagons. The excess weight was found to be 70.1 tonnes and as per circular No. 1 of 1997, the Station Master, at Ledo Goods Station, raised the charges for the excess weight and the petitioner paid the same accordingly, whereupon the Station Master, Ledo duly issued the R.R.(Railway Receipt) giving all details, the copies of the 4 RR being Annexure-III series. In respect of transport of goods from one Station to another, it is incumbent on the part of the Railway Administration to prove weighbridge, but there are many stations where there is no weighbridge and in this view of the matter, the N.F.Railway authorities have issued several circulars describing the method of loading and booking. As per the procedure prescribed, the wagons are to be loaded by the consignees in presence of railway staff of Commercial Department, Security Department and Mechanical Department and the N.F.Railway authorities prescribed the limit of height to which a wagon can be loaded . As per the prescribed procedure, the commercial staff of the Railways shall check each and every wagon to see if the loading is in excess beyond the permissible limit. Thus, the whole process is supervised by the security personnel and mechanical staff. The Coal India Limited has made the complete computer ticket of store Tare weight mentioning the carrying capacity of wagon, first weight, second weight and net weight, a copy of such computer tickets being Annexure-IV. The petitioner received a letter, dated 27.11.99, issued by the Chief Goods Supervisor, Northern Railways, Bathinda, informing the petitioner that the petitioner's consignment of coal loaded in 40 BCN Wagons was re-weighed, on surprise check, jointly by the CBI and the Railway Officials at Laskar Weighbridge on 26.11.99 and it was found that the weight of the loaded coal was over-weighed to the tune of 620 tones approximately and demanded payment of Rs.26,97,984/- for the excess weight. The re-weighing at Laskar Weighbridge was made without any intimation to the petitioner and hence, weighment so made behind the back of the petitioner can be given no credence at all. The petitioner wrote, on 7.11.99, a letter to the Chief Goods Supervisor, Northern Railway, Bathinda, praying for re-weighing of the rake at the cost of the petitioner. The railway authorities have arbitrarily declined to allow re-weighing on the request of the petitioner. The re-weight at Laskar Weighbridge was not taken at Electronic-in-Motion Weigh Bridge as was the case at Ledo. The excess weight allegedly found by the Railways is not correct and the Railways ought not to have re-weighed the coal without any intimation to the petitioner and since the petitioner prayed for re-weighing at their own cost, the refusal to reweigh by the Railway was arbitrary. The weighment at the weighbridge at Laskar Station was not binding on the petitioner. If the weight of the loaded coal was found to be in excess of the permissible limit, the Railways ought to have unloaded the same in accordance with the proviso to Section 73 of the Railways Act and no penalty could have been imposed on the petitioner. Unless the re-weighing is done in presence of the petitioner, it is not possible to prove inaccuracy of the weight found, on re-weighment, at Laskar Railway Station. The railways had no authority to re-weigh the same en-route in the absence of the petitioner. The Railway (Punitive Charges of Overloading of Wagons) Rules, 1990, which authorises the Railway Administration to levy penalty without allowing any opportunity to the petitioner of being heard in the matter is unjustified and ultra vires.

(3.) At the time of issuing notice of motion on 6.12.99, this court, it appears from the record, passed an interim order directing the respondents to re-weigh the Wagons at any Railway Weight Bridge including laskar Railway Station at the cost of the petitioner and after such re-weighing, whatever is found due to the railways shall be paid by the petitioner and thereafter, the coal, in question, shall be released in favour of the petitioner, the re-weighing, so directed, being subject to the deposit of a Bank Guarantee for an amount of Rs.25,26,772/- aforementioned.