Mahtab Ahmad, Member (Judicial)

Shri K. P. Maheshwari, Learned counsel for the Review Petitioners Shri A. K. Sarma, Learned counsel for the Opposite Party/NFR (in Sl. No.1)

Shri M. Barman, Learned counsel for the Opposite Party/ER (in Sl. No.1)

Shri C. M. Pradhan, Learned counsel for the Opposite Party/NFR & ER (in Sl. No.2)

Date of Order: 30.10.2023 Both the above two review petitions have arisen out of common judgement dated 29.10.2021 passed by Single Member Bench of this Tribunal (Hon’ble Member Technical, Smt. Leena Sarma) in OAIII-132/2011 [OAIII/GHY/2011/ 0133] and OAIII-128/2012 [OAIII/GHY/2012/0139] respectively along with 13 other cases.

2. The review petitions are filed for review of findings and decision relating to dismissal of claim for refund of punitive undercharge of Rs.8,117/- in OAIII- 128/2012 [OAIII/GHY/2012/0139] and Rs.2,442/- in OAIII-132/2011 [OAIII/ GHY/2011/0133] for alleged overloading. The ground is that the above punitive undercharge was levied and collected by the opposite party without giving any show-cause notice in violation of law laid down by the full bench of Hon’ble Gauhati High Court in WA-333/2010 decided on 10.08.2017. The applicants have also asserted that the learned Member had overlooked the other case laws, referred by the applicants relevant extract thereof are given in the review petition. It is also contended that no fitness certificate and records as per Rule 1431 and 1435 of Indian Railway Commercial Manual Vol-II of 1991 have been submitted by the respondent railways and this aspect is not discussed in the judgement. Therefore the judgement and order is erroneous and liable to be rejected and modified by allowing refund of above punitive undercharge.

3. On notice, the opposite parties/respondents in original application have put up their appearance, but did not file any formal written objection.

4. The original records were requisitioned and is available with the file of review petition and the parties are ready to argue the review petitions.

5. We heard the learned counsel for the applicants and learned counsel for the respondent railways and perused the record.

6. Before entering into discussion, it would be proper to make it clear that the Tribunal is empowered to review its decision under Section 18(3)(f) of the Railway Claims Tribunal Act, 1987, read with Rule 32 of the Railway Claims Tribunal (Procedure) Rules, 1989; if there is any error or mistake in the judgement apparent on the face of the record or any other sufficient reason. From the above provision, it is clear that power of review has very narrow scope to make variance in the original judgement only on the above two grounds. In review, this Tribunal is not empowered to re-assess the facts and evidences of the case and arrive at an independent findings as appellate court can do while dealing with an appeal. In appeal, the appellate court can re-assess the case on fact and law and derive their own independent finding. Such is not in the case of review.

7. On perusal of the original judgement, we find that the learned Single Bench of the Tribunal has extensively deliberated every issue relating to levy and collection of punitive charge under Section 73 of the Railways Act, 1989 on a consignment being found overloaded. In this case, we find that in the original judgement, the issue of show-cause notice as well as the case laws on the subject, especially the full bench decision of Hon’ble Gauhati High Court in WA-333/2010 decided on 10.08.2