BHASKAR BHATTACHARYA, J.

(1). THIS appeal is at the instance of the Eastern Railway and is directed against the award dated 22nd November, 2000 passed by the Railway Claims tribunal, Calcutta, in Railway Claim Application No. 979 of 1999 by which the tribunal passed an award for refund of Rs. 24,473/ -.

(2). THE facts giving rise to filing of the present appeal may be summed up thus: One consignment dated 29th October, 1998 was booked from Chirai to malda Town Station and the consignment was loaded in five wagons. As the loading was not supervised by the Railway staff, in the receipt, such fact was specifically mentioned. According to the Railway, while the consignment loaded on wagon was on its way to the destination station, a vigilance team of the eastern Railway intercepted the train concerned and conducted reweighment of those wagons at the Pakur Railway weighbridge and found that there was overloading; as a result, the Railway Authority demanded the excess charge for 34 quintals amounting to Rs. 22,104/-at the destination from the owner of the consignment.

(3). THE respondent immediately protested against the said action of the railway and claimed reweighment at the destination when the Railway Authority, on such prayer, specifically recorded that there was no provision for reweighment at the Malda Town Station. Finding no other way, in order to avoid demurrage, the claimant was compelled to remove the goods on payment of excess charge and thereafter, lodged the claim for repayment of the amount.

(4). THE Tribunal, by the award impugned herein, has accepted the contention of the claimant that the Railway Authority was not justified in taking decision to reweigh the goods in the absence of the representative of the claimant and at the same time, could not also deny the demand of reweighment at the destination and, thus, passed the award for repayment.

(5). BEING dissatisfied, the Railway Authority has come up with the present appeal. Mr Banerjee, the learned advocate appearing on behalf of the Railway authority, by relying upon an unreported decision of a Division Bench of this court in the case of Union of India vs. M/s. Bajranglal Jugalkishore (FMA No. 401 of 2001 disposed of on 16th March, 2006) has vehemently contended before us that the law has permitted the Railway Authority to reweigh the consignment in the absence of the owner of the goods and in a case of demand of additional charge on the basis of such reweighment, if the owner demands reweighment after disputing the allegation of overloading, such demand may be refused if reweighment is not feasible due to congestion in the yard or such other justified circumstances as specified in the Section 79 of the Railways Act. In the said case, like the present one, the Railway Authority at Malda Town Station specifically recorded that there was no such facility of reweighment of the consignment at the malda Town Station to weigh the goods.

(6). THE Division Bench, however, was of the opinion that in view of absence of any such facility, the Railway Authority had right to ignore the demand of reweighment and to levy the excess charge by refusing the prayer of fresh weighment in the presence of the owner of the consignment at the destination.

(7). THE Division Bench further held that there is no provision in the Railways act qua Section 78 that the consignor must be noticed before the reweighment and that under the provision of Section 79 of the Act, the Railway had also the right to reject the prayer of reweighment if the application did not conform to the requirement of the said provision.

(8). MR Basu, the learned advocate appearing on behalf of the respondent, has opposed the aforesaid contentions advanced by Mr Banerjee and has contended that once the consignment was booked after issue of a receipt granted by the railway Authority at the time of booking, if on further reweighment the consignment is found to be overweighed and consequently, the Railway Aut