V. K. Khanna, C. J.-This appeal has been filed against the judgment of the learned Single Judge in Civil RuleNo.2189 of 1995, dated 15.6.95 (1995 (1) GLJ 63).

2. We have heard Mr. BK Sharma, learned counsel for the appellant assisted by Mr. PK Tiwari and Mr. GN Sahewalla for the contesting petitioner/respondent.

3. The brief facts for the purposes of adjudicating the present appeal are that a rake of salt was allotted to M/s Saikia Enterprises, Khanapara, Guwahati by the Govt of Assam for the purposes of bringing iodised salt. The aforesaid Enterprise placed orders on M/s ABC Enterprises, Gandhidham for sending the iodised salt by loading it in the rake which has been allotted to M/s Saikia Enterprises. It also not disputed that later on the iodised salt contained in the aforesaid loaded rake has been consigned in favour of M/s Salt Marketing Centre (petitioner/respondent in the appeal).

4. The real dispute in the present appeal centres round the question as to whether the appellant can levy penalty in exercise of their powers given under section 73 read with section 87 (2) (d) of the Indian Railways Act on the basis of reweighment which has been done at an intermediate station, admittedly, in the absence of the consignee.

5. As far as the power of the appellant to levy punitive charges for overloading wagons, that has been upheld by this Court in WA No.27 of 1995, Union of India vs. Asija Gold Traders, decided on 10th February, 1995 (1995 (1) GLJ 199). Thus, we are also of the opinion that as far as the power of the Railway to levy penalty charges in accordance with the provisions of the Railway Act and the Rules framed thereunder, ie Railway (Punitive Charges for Overloading Wagons) Rules, 1990, is concerned, the same can be done in accordance with the Rules.

6. the other question which arises for determination is as to whether the Railway has got power to unload the goods loaded beyond the capacity of the wagon if detected at the forwarding station or in any place before the destination station. We are of the opinion that in view of the clear provisions of proviso to section 73 of the Railway Act, power is available to the Railway will be well within its jurisdiction to get the goods reweighed at any point mentioned in the proviso to section 73 and for that purpose, can even unload the goods from the wagon.

7. The crucial question, thereafter, which falls for determination is regarding the actual levy of penalty. Mr. Sharma, the learned counsel for the Railway, has vehemently urged before us that on the basis of reweighment which has been done under the proviso to section 73, the Railway is entitled to levy penalty on the basis of the conclusions which it may have arrived at on the basis of reweighment done of the loaded goods even though the aforesaid exercise may have been taken in the absence of either the consignor/consignee/endorsee.

8. As stated above, as far as the power of reweighment is concerned, the same is available with the Railway. However, when it comes to the question of levying penalty on the basis of reweighment which has been done in the absence of the consignor/consignee/endorsee, we are of the opinion that the penalty can be levied only after issuing show cause to the person from whom the penalty is sought to be recovered and after affording him reasonable opportunity of placing his case before the competent authority who is going to levy the penalty. The punitive measure of realising the actual penalty can be exercised by the authority only after following the principles of natural justice and not on the basis of any evidence which may have been collected by the Railway ex-parte at the back of the consignor/consignee/ endorsee.

9. In this case, what we find is that the reweighment has been done at an intermediate station where there was weighing facility and admittedly, reweighment has been done in the absence of the consignor/consignee/endorsee and it is on that basis that the penalty is being sought to be im

Click Here to Read the rest of this document