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IN THE HIGH COURT AT CALCUTTA
SUVRA GHOSH, J.
National Carrying Corporation & Anr. – Appellants
Versus
The Union of India & Ors. – Respondents
W.P. 21636 (W) of 2019
Decided on : 11-03-2024
weighment - Railway Dispute - The Railways Act, 1989, Section 78, 79, 64, 65, Railway Commercial Manual, Clause 1451(b), 20.7 - The court discussed the provisions of The Railways Act, 1989, particularly sections 78, 79, 64, and 65, as well as Clause 1451(b) of the Railway Commercial Manual, in relation to the disputed weighment of a parcel van and the demand for punitive charges by the railway authorities. The interpretation of these provisions influenced the court's decision to allow the refund of punitive charges to the petitioners.
Fact of the Case:
The petitioners entered into an agreement with the railway authorities for leasing a parcel van. The railway authorities conducted an in-motion weighment of the parcel van without notice to the petitioners and found it to be over loaded. The petitioners were then demanded to pay punitive charges, which they paid under protest and sought refund.
Finding of the Court:
The court found that the in-motion weighment was conducted without notice to the petitioners and in their absence. It also noted discrepancies in the weighment process and the defective status of the weighbridge. The court held that the petitioners were entitled to a refund of the punitive charges.
Issues: The issues involved the disputed weighment, demand/refund of punitive charges, and the maintainability of the writ petition.
Ratio Decidendi: The court held that the writ petition was maintainable and that the petitioners were entitled to a refund of the punitive charges paid by them.
Final Decision: The writ petition was allowed, and the railway authorities were directed to refund the punitive charges to the petitioners within two weeks.
JUDGMENT :
SUVRA GHOSH, J.
1. The reliefs sought by the petitioners in the present application are three fold:-
ii. Direction for taking necessary steps to rectify in-motion weigh bridge situated at Howrah.
iii. Direction upon the respondent authorities to refund the punitive amount deposited with the Railways to the tune of Rs. 1,11,745/- if it is found that the tare weight exceeds the declared weight.
2. The first and second prayers of the petitioners have been addressed by the railway authorities in compliance with the order by this Court dated 26th November, 2019 and the empty tare weight has been found to be 30.70 tonnes.
3. It is contended on behalf of the petitioners that the petitioners entered into an agreement with the Divisional Commercial Manager, Tinsukia Division of North-East Frontier Railway for leasing of 23 tonnes parcel van on round trip basis by train no. 15960/15959 Kamrup Express, (Dibrugarh to Howrah) for a period of five years from 2nd August, 2017 to 1st August, 2022 subject to payment of lump sum freight per trip. On November 18, 2019, the first petitioner loaded goods parcel weighing about 17,600 kgs in the said parcel van upon payment of advance freight charges and upon completion of loading, a railway manifest duly countersigned by the Chief Parcel Supervisor, Eastern Railway was prepared prior to departure of the train from Howrah station on November 19, 2019. The railways conducted in-motion weighment of the said parcel van without notice to the petitioners and found the parcel van to be over loaded by 2.10 tonnes. The parcel van containing goods including life saving drugs was detached from the train and retained in the station in sealed condition and the petitioners were not permitted to unload the same. Re-weighment of the parcel van and the empty parcel van were not made by the authority despite request of the petitioners and punitive demand for such alleged overloading to the tune of Rs. 1,11,745/- was raised upon the petitioners on the same day accompanied by threat of other punitive measures including disentitlement of the petitioners from further loading and unloading. The petitioners were constrained to pay such amount under duress and seek refund of the same.
4. Learned counsel for the petitioners has taken this Court to the application filed by the railway authority before this Court being CA No. 72 of 2020 praying for a direction upon the Controller of Legal Metrology (7th Respondent) to take appropriate steps for repairing of the electronic in-motion weigh bridge at Howrah Station by permitting opening of seals provided on the console unit and junction box. In the said application, the respondent railways has stated that whenever the in-motion weigh bridge at Howrah is out of order, necessary steps are taken for repairing the same by the railways as well as the Legal Metrology Department on an urgent basis. Also, the safety and security of trains carrying railway passengers and goods are in danger and the railway is suffering huge expenses due to non weighment of VP/SLR at Howrah on account of non cooperation of the Legal Metrology Department. Therefore it is crystal clear that the in-motion weigh bridge is often out of order and non-functional. The weigh bridge was found to be defective from 23rd December, 2019 to 13th January, 2020. The in-motion weigh bridge was rectified and the empty parcel van weighed and found to be 30.70 tonnes on 13th January, 2020.
5. Learned counsel for the petitioners submits that the in-motion weigh bridge was still defective since the normal weight of the parcel van ought to be 32 tonnes whereas it showed 30.70 tonnes on the relevant date. Learned counsel has referred to clause 1451(b) of The Railway Commercial Manual which indicates that railway receipts should not be granted till goods tendered for
The main legal point established in the judgment is that the weighment process and the demand for punitive charges by the railway authorities must adhere to the provisions of The Railways Act, 1989, ....
The weighment done at the enroute station was in accordance with the rules and provisions of the Railway Act. The weighment done by the 2nd respondent was not binding on the Indian Railways.
The right to request weighment under Section 79 of the Railways Act is not absolute; it is subject to operational feasibility, thus validating punitive charges for excess weight identified by railway....
The railway administration is not required to serve a notice to a party before weighment at a railway station enroute, and it has the right to reweigh any consignment without giving prior notice to t....
Penalties for overloading railway wagons cannot be enforced post-delivery of goods without prior notice, as mandated by statutory requirements.
Railway authorities must provide adequate documentation to impose penal freights for overloading; absence of such evidence justifies a refund of excess charges.
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