IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.03.2008
C O R A M
THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI
W.P.No.1940 of 2008 and M.P.Nos.1 & 2 of 2008
M/s.Surana Industries Ltd.,
Represented by its Executive Director,
Mr.Rajesh Surana,
No.29, Whites Road, 2nd Floor,
Royapettah, Chennai 600 014. .. Petitioner
-Vs-
1. The General Manager,
Southern Railway,
Park Town, Chennai 600 003.
2. The Chief Goods Supervisor,
KOKG, Korukkupet, Chennai.
3. The Senior Divisional Commercial Manager,
Southern Railway. Park Town, Chennai 600 003.
4. The Chief Freight Traffic Manager,
Southern Railway,
Park Town, Chennai 600 003. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the 3rd respondent passed in NO:m/c.614/3/rw/kokg/07 DT.07.01.2008 and quash the same and consequently directing the respondents herein to deliver the consignment No.C/167822 dt.13.01.2007 to the petitioner after weighing the consignment at any private weigh bridge in the presence of departmental representative.
For Petitioner : Mr.G.Jeremiah
For Respondents : Mr.Su.Srinivasan
- - - -
O R D E R
This writ petition is filed challenging the order of the 3rd respondent Senior Divisional Commercial Manager, Southern Railway dated 07.01.2008, under which the request of the petitioner company was rejected by the 3rd respondent on the ground that existing rules do not provide for Railway Officials witnessing survey conducted by parties.
2. The petitioner company is dealing with Iron and Steel manufacturing business and having regular dealings with Steel Authority of India Ltd. (for short ‘SAIL’). The petitioner company placed orders for supply of Iron bars with SAIL, the first consignment was sent with a delay of one month with shortage of 8 MT of materials, when it was weighted outside and the second consignment was loaded at SCOB Siding Eastern Railway in original Wagon No.SC 90968 with the quantity of 62.600 MT of TMT bars under the Railway Receipt No.C/167822 dated 13.01.2007 and according to the petitioner, it is worth about Rs.22 lakhs and the consignment arrived at Chennai by transshipped box wagon No.NR 86234 on 26.10.2007 and invoice No. is C/00542, dated 13.01.2007.
3. Since in respect of the earlier consignment there was a shortage of weighment, a letter was given by the petitioner to the second respondent for re-weighment of the wagon on 26.10.2007. However, re-wighment was made on 13.11.2007, in the absence of the representatives of the petitioner company and the weight was shown as 81.42 MT. Since the original weight consigned by the SAIL was 62.600 MT and re-weighing by the second respondent which shows 81.42 MT, as the difference is more, the petitioner has sent another letter dated 13.11.2007, to the second and third respondent and a copy was also sent to the consignor SAIL and another letter was sent on 14.11.2007, to the 3rd respondent to re-weigh the consignment on account of the difference in weight. The wagon was re-weighted on 12.12.2007, in the presence of the representatives of the petitioner company and the net weight was shown as 83.78 MT. Since there was difference between the original weight and second re-weight also, the petitioner has given another letter on 15.12.07, to tare weigh the empty wagon.
4. On the basis of further representation of the petitioner dated 17.12.2007 to the first respondent followed by a reminder dated 20.12.2007, the respondents weighed the empty wagon on 26.12.2007 and it has shown the tare weight as 30.02 MT and as per the said measurement, the weight of the Steel namely the consignment would come to 79.46 MT.
5. According to the petitioner, the measurement done when the consignment was made by the SAIL shows 62.600 MT witnessed by railway staff even though the rubber stamp shows that Loading not supervised by Rly. Weighment witnessed by Rly. Staff. However, in the first weighment by the respondents, the weight is shown as 81.42 MT and re-weighment is shown as 83.78 Mt and on tare weight, the weight of the Steel consignment was shown as 79.46 MT. Therefore, as per the weighment done by the respondents there are at least three different weight shown and therefore, according to the petitioner having doubt about the genuineness of the weighment done by the respondents, the petitioner company has given a representation for weighing the consignment by a private weigh bridge in the presence of the departmental representatives. While dealing with such representation, the third respondent passed the impugned order stating that there is no rule providing for such weighment in a private weigh bridge in the presence of the departmental representatives. Aggrieved by that, the petitioner has filed the present writ petition.
6. The respondents in the counter affidavit while admitting about the facts relating to the consignment, stated that the consignment in question were received at Korukkupet Goods in a transshipped wagon on 26.10.2007. Since it has taken 10 months time, the petitioner requested for weighment due to suspicion. As per Section 79 of the Railways Act 1989, the weighment of the consignments can be done subject to such conditions and on payment of such charges as may be prescribed and also demurrage charges. According to the respondents, rules framed under the Railways Act, 1989, permit for re-weighment even though railway receipt of consignment states said to contain. According to the respondents, as there is no weighment facility available at Korukkupet Goods the wagon had to be hauled to Royapuram, where a certified electronic-in-motion weighbridge is located. It is also the further case of the respondents that under the provisions of the Railways Act, weighment at the destination under the presence of the consignee is not permissible. According to the respondents when the weighment was done on 13.11.2007 and 12.12.2007 the difference is only marginal since on an earlier occasion the gross weight was 107.12 MT and on the later occasion it was 109.48 MT and therefore the variation is only minimal and the petitioner cannot have any grievance.
7. It is the further case of the respondents that the petitioner was already directed to take delivery of the consignment by paying all charges due to the Railways, amounting to Rs.4.28 lakhs and that communication was sent on 31.01.2008 and it is only to evade payment of the said amount, the petitioner is making representation one after another. It is also the case of the respondents that if the petitioner is aggrieved by the re-weighment done by the Railways, it is open to the petitioner to approach the Railways Rates Tribunal under Section 36 of the Railways Act.
8. It is also brought to the notice of this Court by the learned counsel for the respondents that the Railway Rates Tribunal has decided exactly a similar issue as that of re-weighment wherein there was some shortage in I.A.No.1 of 2005 in Complaint No.1 of 2005 and therefore the Tribunal has jurisdiction to entertain the dispute which is raised in the present case.
9. Mr.G.Jeremiah, learned counsel appearing for the petitioner would submit that while it is true that a complaint can be made to the Tribunal, on the factual situation in the present case, the re-weighment done on three occasions shows three different weight and prima facie it has to be taken that there is some defect in the method of weighment by the respondents. His contention is that when the original weight as consigned by the consignor was 62.600 MT, on re-weighment, because the petitioner had suspicion due to his previous experience with the respondents on an earlier occasion, the weight is shown as 81.42 MT. Therefore, the margin is more than 20 MT and it cannot be said to be incidental. He further contended that it is because of enormous difference in the weight of original consignment and the that of the re-weighment, the petitioner applied for another re-weighment and on the second occasion the weight was shown as 83.78 Mt. So between the first and the second re-weighment there was 2 Mt difference even as admitted by the respondents. He would also submit that on the third time the respondents sent to tare weigh the empty wagon and based on that the weight of the consignment was calculated as 79.46 MT and therefore according to the learned counsel appearing for the petitioner the three re-weighment by the respondents would show that prima facie the weighment is defective. The concern of the petitioner is not merely the difference in weighment to pay fare to the respondent railways, but the petitioner has to face the consignor who has actually consigned the goods weighing 62.600 MT and subsequently, in the railways weighment it is shown as 83.78 MT which may result in claim by the consignor for further weight of nearly 20 MT and being a regular customer of SAIL, the business of the petitioner will be affected and there is no purpose of driving the petitioner to the Tribunal and according to the learned counsel for the petitioner under Section 36 and 37 of the Railways Act, his claim may not be entertained by the Tribunal.
10. On the other hand, Mr.Su.Srinivasan, learned counsel appearing for the respondents referred to the order passed by the Railway Rates Tribunal dated 03.02.2005, wherein, the Tribunal has found that in exactly similar circumstances, where there was excess freight weight made on the ground of excess weight received on the destination. Under such circumstances, in fact, the Tribunal has entertained the complaint and further directed the railways to furnish a copy of the printout pertaining to the complainants consignment recorded by in-motion weighbridge device electronically.
11. Heard Mr.G.Jeremiah, learned counsel appearing for the petitioner and Mr.Su.Srinivasan, learned counsel appearing for the respondents and perused the entire records.
12. Now the facts relating to weighment is in issue. It is to be decided as to whether the petitioner has to be driven to the Railway Rates Tribunal for adjudication or the same can be entertained by this Court exercising jurisdiction under Article 226 of the Constitution of India. Section 36 of the Railways Act, 1989 provides for giving any complaint against railway administration in respect of contravening the provisions of Section 70 of the Act which prohibits the railway administration showing undue preference and in cases where charges for carriage of any commodity between two stations at a rate which is unreasonable and in cases where levying any other charge which is unreasonable. Section 37 of the Act excludes the jurisdiction of the Tribunal in certain cases relating to classification or re-classification of any commodity, fixation of wharfage and demurrage charges, fixation of fares levied for the carriage of passengers and freight levied for the carriage of luggage, parcels, railway material and military traffic and fixation of lump sum rates. Sections 35, 36 and 37 states as follows:
Section 35. Sitting of the Tribunal:- The Tribunal may sit at such place or places as it may find convenient for the transaction of its business.
Section 36. Complaints against a railway administration:- Any complaint that a railway administration-
(a) is contravening the provisions of Section 70; or
(b) is charging for the carriage of any commodity between two stations at a rate which is unreasonable; or
(c) is levying any other charge which is unreasonable,
may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter.
Section 37. Matters not within the jurisdiction of the Tribunal:- Nothing in this Chapter shall confer jurisdiction on the Tribunal in respect of:-
(a) Classification or re-classification of any commodity;
(b) fixation of wharfage and demurrage charges (including conditions attached to such charges);
(c) fixation of fares levied for the carriage of passengers and freight levied for the carriage of luggage, parcels, railway material and military traffic; and
(d) fixation of lump sum rates.
13. In the case referred to by the learned counsel appearing for the respondents which has been decided by the Railway Rates Tribunal in its order dated 03.02.05 passed in I.A.No.1 of 2005 in Complaint No.1 of 2005, no doubt it is made clear that the Tribunal has jurisdiction. In fact the Tribunal in the said case has directed the Railways to apply Section 79 of the Railways Act liberally by accepting re-weighing of goods when it involves short delivery of goods consigned to render assistance to the parties concerned for their disputes inter se or with Railways as to such short delivery and not when it relates to charging and collection of freight. It is also held by the Tribunal that in such cases except for strong, concrete and positive reasons, the weight recorded by the in-motion weighing electronically propelled system should invariably be accepted. However on applying the said section liberally on the facts of the case before the Tribunal, the Tribunal has held that in the said case, no such strong reasons or positive defect has been either alleged or made substantially prima facie to merit the interference by the Tribunal.
14. There is no doubt in coming to the conclusion that the Tribunal has got jurisdiction in respect of the issue involved in this case. But the facts and circumstances of the present case is entirely different as it is seen in the railway receipt by which the consignment was made by SAIL and the weighment was done at the consignor place which shows 62.600 MT and even though the Station Master has signed but it is rubber stamped as loading is not supervised but the fact remains that weighment was done and it was witnessed by the railway staff. Therefore, at the time when the consignment was effected in the consignor place the weighment was 62.600 MT and it has taken nearly 10 months for the railways to bring the consignment to the consignee place at Chennai. On the request of the petitioner, when it was reweighed after 11 months, the consignment which contain Steel rods by the second respondent it has shown 81.42 MT. It cannot be said that difference of 20 MT is either incidental or it is due to any other reason which can be accepted in favour of the respondent Railways. Naturally the respondent Railway has to be fair, being a Public Sector Undertaking. It is astonishing to see that in the second reweighment the weight is shows as 82.78 MT. Even though an attempt is made by the respondents that difference of 2 MT is only incidental, the same cannot be accepted by any prudent mind. It is more distressing to note that on the third time the respondents sent to tare weigh the empty wagon and based on that, the weight of the consignment was calculated as 79.46 MT. The said fact viz., the difference in the weight on three occasions are not disputed by the respondents any where in the counter affidavit. But the only reason shown in the counter affidavit is either the difference is incidental or the petitioner has got relief available before the Tribunal. On the factual situation when weighment is done by the respondents on three occasions the difference cannot be said to be incidental.
15. The contention of the learned counsel for the respondents that variation recorded in weighment is permissible as per clause 6.1.2 of the Schedule of Technical Requirements for Piteless In-Motion Railway Electronic Weighbridge published by the Railways in June 2005. The said clause states as follows:
6.1.2. The maximum permissible error for in motion weighbridges shall be as specified in Table-I.
Accuracy class
% of mass of single wagon or total train, as appropriate
Initial Verification
In-service inspection
0.2
+ 0.10%
+ 0.20%
0.5
+ 0.25%
+ 0.50%
1
+ 0.50%
+ 1.00%
2
+ 1.00%
+ 2.00%
For application of maximum permissible errors refer para 6.1.4 and 6.1.5. On initial verification of weighbridge, weighing coupled wagons, the errors of not more than 10% of the weighing results taken from one or more passes of the test train may exceed the appropriate maximum permissible error given in Table-I but shall not exceed two times the value.
In the counter it is stated that the difference is minimal and it is incidental as stated above. But on the factual situation it does not come within the permissible percentage as stated in the said rules.
16. I am of the considered view that prima facie the weighment done by the respondents in the present consignment is not acceptable and therefore, it is the duty on the part of the respondents to again reweigh the consignment. As far as the claim of the petitioner to reweigh in a private place is concerned, a reading of the Rules framed under the Railways Act makes it clear that weighment can be done in the destination station as per Rule 3 of The Weighment of Consignments in Wagon-Load or Train-Load Rules, 1990. Rules 3 and 4 reads as follows:
Rule 3. Weighment of Wagon-load or Train-load consignments at destination:-
(1) The Consignee or the endorsee of a wagon-load or a train-load consignment booked at railway risk rate may, if he has reason to believe that the wagon offered to him for delivery at destination does not contain the quantity of goods entrusted for carriage, make a request in writing to the Divisional Commercial Superintendent or any other railway servant authorised in this behalf for the weighment of such consignment at destination station.
(2) Subject to the provisions of Rule 4, any railway servant authorised in this behalf may allow request for weighment under sub-rule (1) on a railway weigh bridge on the payment of,-
(i) Charges for weighment of wagons as specified in Schedule I:
(ii) additional charges, for haulage of a wagon irrespective of distance as specified in Schedule II, if due to non-availability of railway weigh bridge at the destination station,
The wagon has to be sent to another station for weighment:
Provided that if the wagon had to be sent to another station due to the weigh bridge at the destination station being out of order, no additional charges shall be levied for such haulage;
(iii) demurrage charges, if any.
Rule 4.Circumstances for disallowing weighment:- Where a request has been made under Rule 3, any railway servant authorised in this behalf may disallow such request if:
(1) The consignment is received in covered wagon, and the seals of the loading station are intact and there is not other evidence of the consignment having been tampered in transit;
(2) the consignment had been received in open wagon and there is no sign of tampering of the original packing or other evidence of such consignment having been tampered in transit;
(3) the consignment is of perishable nature and is likely to lose weight in transit;
(4) in the opinion of such railway servant, the weighment is not feasible due to congestion in the yard;
A reading of the said rules makes it clear that the weighment has to be done in the destination station and it can be sent to another station also in case where the weigh bridge at the destination station being out of order and in such event it is not open to the respondent railways to claim any additional charges.
17. The learned counsel appearing for the respondents would submit that apart from Royapuram station where in-motion weighbridge is available, the other destination where such a facility is available is at Chengleput and at Korukkupet Goods there is no such provision. It is the case of the respondents that the weighbridge at Royapuram is certified for its working condition and accuracy.
18. In fact the re-weighment done in Royapuram for three times which shows three different weighment. Under such circumstances, I am of the view that as per Rule 3 (2) proviso of the Rules 1990, which provides that the wagon has to be sent to another station due to the reason that weigh bridge at the destination station has become out of order which includes defective weighment also. Therefore, it is the duty of the respondent railways to see that further weighment is done in other destination station viz., Chengleput without claiming any additional charges.
19. Under such circumstances when the facts are not disputed, there is no purpose in referring the petitioner to the Railway Rates Tribunal, since this Court is satisfied that prima facie it is due to the defective weighment by the respondents three different weights have been shown. In view of the same, the writ petition stands allowed, however, with a direction to the respondents to reweigh the consignment in another destination station viz., Chengleput or any other place where in-motion weigh bridge is available without claiming any additional charges from the petitioner. Such re-weighment shall be done by the respondents after giving notice to the petitioner and in the presence of the representatives of the petitioner company, within a period of six weeks from the date of receipt of a copy of this order. Consequently, the connected M.Ps. are closed. No costs.
kk
To
1. The General Manager,
Southern Railway,
Park Town, Chennai 600 003.
2. The Chief Goods Supervisor,
KOKG, Korukkupet, Chennai.
3. The Senior Divisional Commercial Manager,
Southern Railway. Park Town, Chennai 600 003.
4. The Chief Freight Traffic Manager,
Southern Railway, Park Town,
Chennai 600 003.