The main legal point established in the judgment is that the system introduced for computing rake loading time resulted in unfair penalization of the petitioner company with excessive demurrage charges, and the court directed the railway authority to recalculate and refund the excess demurrage charges paid by the petitioner company.

JUDGMENT

Saugata Bhattacharyya, J. - The writ petition has been preferred by Rashmi Metaliks Ltd. (hereinafter referred to as the 'petitioner company'), inter alia, questioning the system introduced by the Senior Divisional Operations Manager, South Eastern Railway, being the respondent no. 5 for loading the rakes at the private siding of the petitioner company situates between Barajamda and Barbil stations for the period from 1st February, 2008 till 8th July, 2008 vide order of the said respondent no. 5 which was notified by the Station Manager, Barajamda. The petitioner company has also challenged letters dated 22nd May, 2009; 8th July, 2009; 7th June, 2012; 19th November, 2009 and 9th February, 2010 whereby requests of the petitioner company for refund of demurrage charge was spurned.

2. Petitioner company provided infrastructure at its private siding situates on its land between the rail stations Barajamda and Barbil for rake loading and the weighbridge of the said siding is installed near to the take-off point wherefrom main line starts. According to the petitioner company full rake cannot be accommodated between the weighbridge and the take-off point. The said infrastructure for rake loading has been provided by the petitioner company for loading iron-ore. Before 1st February, 2008 the petitioner company was required to load the rakes under the system which was based on certification by the Guard of the rake who remained present at the siding of the petitioner company while loading. The free time for such rake loading has been three hours meaning thereby if for loading a particular rake more than three hours is consumed by the petitioner company as per norms the petitioner company is required to pay demurrage charges.

3. It has been submitted by the petitioner company that on introduction of new system effective from 1st February, 2008 the loading completion time was to be reckoned on weighment of the last wagon of the rake. Due to introduction of the procedure for determination of rake loading time effective from 1st February, 2008 the certification made by the Guard of the rake was not to be considered for determining such loading time. Along with loading of rake the process of weighment of wagon was included being part of loading time till the weighment of the last wagon of a rake.

4. The specific case of the petitioner company is on most of the occasions during the period from 1st February 2008 till 8th July 2008 rake loading was completed within free time of three hours but it was due to delay in weighment of wagons the petitioner company was unnecessarily penalized on levy of demurrage charges. While formulating the case on behalf of the petitioner first by Mr. S.N. Mookherjee, learned Advocate General and subsequently by Mr. Abhratosh Majumder, learned senior advocate, have heavily relied upon a letter dated 9th February, 2010 issued by the Deputy Chief Operations Manager (I&S) of South Eastern Railway being the respondent no. 7 which is annexed to the writ petition at page 63. It has been submitted that in support of the case of the petitioner company it has been admitted that empty rake is attached with the engine and after completion of loading the engine draws the loaded rake towards weighbridge for weighment. Since the siding has got in-motion weighbridge located at the mouth of the siding very close to the take-off point and the segment of track between the weighbridge and take-off point is grossly inadequate for accommodating even one BOXN wagon, complete weighment of the rake is thus possible only when rake moves towards Barajamda station after getting the line clear. It has been indicated in the said letter dated 9th February, 2010 by the respondent no. 7 since the weighment of rake is not possible without physical movement of the rake on the main line towards Barajamda station, the Chief Operations Manager directed that time certified by the concerned Guard would be accepted as loading completion time and di