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GAUHATI HIGH COURT
I. A. ANSARI, J.
Nirmal Traders -Appellant
Versus
Union of India and others -Resopndent
W.P. (C) No. 6021 of 1999
Decided On : 09-04-2003
RAILWAY ADMINISTRATION - RE-WEIGHMENT OF GOODS - POWERS OF RAILWAY ADMINISTRATION - SECTION 78 OF INDIAN RAILWAYS ACT - DISCRETION OF RAILWAY ADMINISTRATION TO RE-WEIGH GOODS ENROUTE - SECTION 79 OF INDIAN RAILWAYS ACT - DISCRETION OF RAILWAY ADMINISTRATION TO ALLOW RE-WEIGHMENT ON REQUEST OF CONSIGNEE OR ENDORSEE - CONDITIONS AND CHARGES FOR RE-WEIGHMENT - EXCEPTIONS - CONSIGNMENTS BOOKED AT OWNERS RISK - PERISHABLE GOODS - DISCRETION OF RAILWAY SERVANT TO ALLOW RE-WEIGHMENT - EXERCISE OF DISCRETION - REASONS FOR REFUSAL TO RE-WEIGH - CONGESTION IN YARD OR OTHER OPERATIONAL EXIGENCIES - BURDEN OF PROOF ON RAILWAY ADMINISTRATION - WRIT JURISDICTION - DISPUTED QUESTIONS OF FACT - INTERIM ORDERS FOR RE-WEIGHMENT - BINDING NATURE OF WEIGHT FOUND ON RE-WEIGHMENT - CORRECTNESS OF WEIGHT - EXPLANATION BY RAILWAY ADMINISTRATION - IMPOSITION OF PENALTY FOR OVERLOADING - JUSTIFICATION - FACTORS TO BE CONSIDERED - TIME-FRAME FOR COMPLETION OF EXERCISE BY RAILWAY ADMINISTRATION - BANK GUARANTEE SUBMITTED BY PETITIONER - RELEASE OF BANK GUARANTEE.
Fact of the Case:
The petitioner, a coal trader, booked 40 BCN wagons with the railways for transportation of coal from Ledo Railway Station to Bathinda. The coal was weighed at an electronic-in-motion Weigh Bridge at Ledo in the presence of representatives of the railways and the petitioner. The railways issued RRs (Railway Receipts) giving details of the weight of the coal. However, upon re-weighment of the coal at Laskar Weighbridge, the railways found an excess weight of 620 tons and demanded payment of penalty for the excess weight. The petitioner requested for re-weighment of the coal at their own cost, but the railways declined the request. The petitioner filed a writ petition challenging the re-weighment of the coal without any intimation to them and the refusal to allow re-weighment on their request.
Finding of the Court:
1. The railway administration has the power under Section 78 of the Indian Railways Act to re-weigh any consignment before delivery to the consignee or endorsee, and this power overrides all relevant provisions of the Act. 2. The railways have special powers under Section 73 of the Act to impose penalty in case of overloading of wagons. 3. The railways have discretion to re-weigh consignment en-route without notice to, or in the absence of the consignor, consignee or endorsee. 4. The railways cannot arbitrarily decline to re-weigh a consignment on the request of the consignee or endorsee under Section 79 of the Act, particularly if the consignee or endorsee is willing to pay for the fees/costs of the same. 5. The railways must be able to show that in the facts and circumstances of the case, no discretion for re-weighment could have been exercised by the railway servant, in order to justify their refusal to re-weigh the consignment. 6. The railways have a little wider discretion in declining to re-weigh goods booked at owners risk or goods which are perishable in nature or are likely to lose weight in transit, but in a case where the railways have already weighed the consignment under Section 78 and propose to impose penalty on the ground of over-loading, the discretion to re-weigh gets substantially narrowed down. 7. The railways must satisfy the Court that for good and justified reasons, the discretion to re-weigh cannot be exercised, when the consignee or endorsee makes a request for re-weighment in their presence. 8. The railways cannot take resort to the exception of congestion in the yard or other operational exigencies as a mere excuse for justifying denial of weighment. 9. The railways have the burden of proof to show that it was really on account of congestion in the yard or other operational exigencies that it could not re-weigh the consignment on the request of the petitioner. 10. The High Court has territorial jurisdiction to entertain a writ petition challenging the re-weighment of coal at Laskar Weighbridge, even though the initial weighment of the coal was done at Ledo, which falls within the territorial jurisdiction of the High Court, as the correctness of the weight found at Ledo is in dispute and the railways are relying on the weight found at Laskar to impose penalty. 11. The High Court can direct re-weighment of the consignment as an interim measure, but the correctness of the weight found pursuant to the re-weighment ordered by the Court is a question of fact which the Court will not enter into. 12. The railways must be able to show that the weight found on the re-weighment en-route is the correct one, in order to impose penalty on the ground of over-loading.
Issues: 1. Whether the railway administration has unfettered power to re-weigh goods booked with the railways enroute behind the back of the consignee or endorsee in exercise of their powers under Section 78 of the Indian Railways Act? 2. Whether the railway administration has also unbridled discretion under Section 79 of the said Act not to re-weigh, on the request of the consignee or endorsee, such a re-weighed consignment?
Ratio Decidendi: 1. The railway administration has the power under Section 78 of the Indian Railways Act to re-weigh any consignment before delivery to the consignee or endorsee, and this power overrides all relevant provisions of the Act. 2. The railways have special powers under Section 73 of the Act to impose penalty in case of overloading of wagons. 3. The railways have discretion to re-weigh consignment en-route without notice to, or in the absence of the consignor, consignee or endorsee. 4. The railways cannot arbitrarily decline to re-weigh a consignment on the request of the consignee or endorsee under Section 79 of the Act, particularly if the consignee or endorsee is willing to pay for the fees/costs of the same. 5. The railways must be able to show that in the facts and circumstances of the case, no discretion for re-weighment could have been exercised by the railway servant, in order to justify their refusal to re-weigh the consignment. 6. The railways have a little wider discretion in declining to re-weigh goods booked at owners risk or goods which are perishable in nature or are likely to lose weight in transit, but in a case where the railways have already weighed the consignment under Section 78 and propose to impose penalty on the ground of over-loading, the discretion to re-weigh gets substantially narrowed down. 7. The railways must satisfy the Court that for good and justified reasons, the discretion to re-weigh cannot be exercised, when the consignee or endorsee makes a request for re-weighment in their presence. 8. The railways cannot take resort to the exception of congestion in the yard or other operational exigencies as a mere excuse for justifying denial of weighment. 9. The railways have the burden of proof to show that it was really on account of congestion in the yard or other operational exigencies that it could not re-weigh the consignment on the request of the petitioner. 10. The High Court has territorial jurisdiction to entertain a writ petition challenging the re-weighment of coal at Laskar Weighbridge, even though the initial weighment of the coal was done at Ledo, which falls within the territorial jurisdiction of the High Court, as the correctness of the weight found at Ledo is in dispute and the railways are relying on the weight found at Laskar to impose penalty. 11. The High Court can direct re-weighment of the consignment as an interim measure, but the correctness of the weight found pursuant to the re-weighment ordered by the Court is a question of fact which the Court will not enter into. 12. The railways must be able to show that the weight found on the re-weighment en-route is the correct one, in order to impose penalty on the ground of over-loading.
Final Decision: 1. The impugned letter dated 30-11-99 (Annexure VI-A to the writ petition) whereby the railway respondents declined petitioner's request for re-weighment is hereby set aside and quashed. 2. The letter dated 30-11-99 (Annexure VIA to the writ petition) aforementioned to the extent that the same imposes penalty on the petitioner shall accordingly stand set aside and quashed. 3. The respondents are, now, required to take into consideration the weight of the Coal found on the interim directions of this Court and upon considering the matter in its entirety, the respondents concerned shall be at liberty to come to its own just and proper decision. 4. The respondents are directed to complete the entire exercise, as directed hereinabove, within a period of one month from today. 5. No order as to costs.
Whether the railway administration has unfettered power to re-weigh goods booked with the railways enroute behind the back of the consignee or endorsee in exercise of their powers under Section 78 of the Indian Railways Act and whether the railway administration has also unbridled discretion under Section 79 of the said Act not to re-weigh, on the request of the consignee or endorsee, such a re-weighed consignment are the two moot questions, which this writ petition has raised.
2. In the above backdrop, the case of the petitioner needs to be considered. Petitioners case, briefly stated, runs as follows :
In the course of its business, the petitionder has booked 40 BCN Wagons as per the rake programme sponsored by the Government of Punjab on 17-18 of November, 1999. The coal was loaded at Ledo Railway Station in the District of Tinsukia (Assam), its destination being Bathinda. The said rake of coal was weighed at Electronic-in-Motion Weigh Bridge, at Ledo, in presence of representatives of North Eastern Coal Fields/Coal India Limited and the representatives of the Railway authorities, the Wagon having been booked by North Eastern Coal Fields/Coal India Limited, which is a Government of India undertaking. The said weigh bridge stood checked and certified, on 25-5-99, to be in order, the next date for verification being on 25-5-2000. The railway authorities from time to time issued circulars regarding loading and weighment of coal at various stations. In accordance with their policy, Circular No. 1 of 1997 was issued by the respondents to the Joint Commercial and Operating Circular with regard to weighment of coal loaded at electronic-in-motion Weigh Bridge at Ledo. In the said circular, the procedure/instructions were given regarding weighment of coal rake at weigh bridge. According to this circular, the railway staff issues receipt on the strength of weighment chart received from the computer at the said bridge making it, however, clear that the excess weight, if any, beyond the permissible limit will be charged as per the commercial rules, one of the conditions of weighment being that one commercial staff from the Railways will witness the weighment at the computer round the clock and jointly counter-sign the weight, so found, along with the operator of the Computer. The relevant circular has been annexed as Annexure-II to the writ petition. After weighment of the coal aforementioned, the petitioner duly paid the charges. The loaded coal was, however, found to be in excess of permissible limit in some BCN Wagons. The excess weight was found to be 70.1 tons and as per circular No. 1 of 1997, the Station Master, at Ledo Goods Station, raised the charges for the excess weight and the petitioner paid the same accordingly, whereupon the Station Master, Ledo, duly issued the R.R. (Railway Receipt) giving all details, the copies of the 4 RR being An-nexure-III series. In respect of transport of goods from one Station to another, it is incumbent on the part of the Railway Administration to provide weighbridge, but there are many stations where there is no weighbridge and in this view of the matter, the N.F. Railway authorities have issued several circulars describing the method of loading and booking. As per the procedure prescribed, the wagons are to be loaded by the consignees in presence of railway staff of Commercial Department, Security Department and Mechanical Department and the N.F. Railway Authorities prescribed the limit of height to which a wagon can be loaded. As per the prescribed procedure, the commercial staff of the Railways shall check each and every wagon to see if the loading is in excess beyond the permissible limit. Thus, the whole process is supervised by the security personnel and mechanical staff. The Coal India Limited has made the complete computer ticket of store Tare weight mentioning the carrying capacity of wagon, first weight, second weight and net weight, a copy of such computer tickets being
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