The railway authorities are duty-bound to reweigh the consignment in the presence of the petitioner if a dispute arises regarding the weighment.

The petitioner despatched salt in 59 box wagons to Kolkata by railway under four railway receipts being dated 16th November, 2009. All the four consignees re-endorsed the said railway receipts in favour of the petitioner. The petitioner, from time to time enquired from the railway authorities regarding arrival of the consignments.

2. In or about 21st November, 2009, the petitioner was surprised to learn that on the basis of a purported weighment of the said 59 wagon during movement at Waria Station, the respondent found that there has been mis-declaration as to weight and found that the contents are having an excess weight of 161.79 MT. On the basis of such excess weight, a demand for under charge amounting to Rs. 11,92,233/- was raised.

3. The petitioner did not accept the said demand of the railway authorities and instead requested the authorities concerned to re-weigh the same in the presence of the petitioner. The respondent authorities refused to re-weigh the same and instead after permitting the petitioner to take delivery of 44 boxes illegally detained delivery of 15 boxes to realise the said amount by selling the same in a public auction. This has resulted in filing of the present writ application.

4. Mr. Ramesh Chowdhury, learned advocate for the petitioner submits that once the petitioner raised a dispute with regard to the weighment the railway authorities are duty bound to reweigh the said consignment in presence of the petitioner. That the said weighment at Waria Station was done without notice to the petitioner is not in dispute. It is argued that no demand could be raised on the basis of such unilateral weighment of the consignment, Mr. Chowdhury relied upon the following decisions for the proposition that in the event the railway authorities are required to weigh the same they can only do so after giving adequate notice and in presence of the petitioner.

(1) Unreported decision in WP No. 2756 of 2000 (Binod Kumar Agarwal v. Union of India & Ors.) decided on September 14, 2012.

(2) Unreported decision in APO No. 241 of 2009 and WP No. 358 of 2006 (Union of India and Ors. v. Ultra Tech Cement Limited and Another) decided on January 27, 2010.

(3) Union of India v. Agarwala (2008) 1 CHN 751 : (AIR 2008 (NOC) 1396 (Cal)).

5. In Binod Kumar Agarwal (supra), the petitioner contended that iodized salt (goods) was carried by the Railways from Newa City, Rajasthan to Ranigunge, West Bengal. At the loading point, the goods were weighed and on the basis of such weighment, the railway receipt was issued. The goods was to reach Ranigunge and prior thereto at Andal the goods were re-weighed. There was no dispute with regard to re-weighment but it was contended that in case such re-weighment is to be effected, the same should have been done in the presence of the petitioner. It was only when the goods reached the unloading point at Ranigunge, the railway authorities raised demand for excess loading for the first time. The respondent contended that such re-weighment was effected under Section 78 of the Railways Act, 1989. As iodized salt was a perishable item, upon payment of the alleged charges, the goods were taken delivery of and thereafter, the representation was considered by the adjudicating authority when the railway authorities wanted to justify these acts and conduct by referring to Section 78 of the 1989 Act to reweigh the consignment at any point between the loading and unloading points and it was thus contended that the re-weighment was effected at Andal where an electronic weigh bridge exists.

6. The learned single Judge, in considering Section 78 of the 1989 Act observed as follows :

While re-weighment is permitted and while Section 78 of the 1989 Act is silent with regard to such re-weighment being effected either in the presence of the parties or in their absence, the principles of natural justice warrant that such re-weighment be done in the presence of the parties, more so as the Railways are statutory authoritie