(Prayer: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records relating to the order passed by the third respondent dated 25.08.2015 in Complaint No.3 of 2010, quash the same and further direct the second respondent to refund the excess amounts collected hitherto from the petitioner along with interest.)
1. This writ petition has been filed to quash the order passed by the third respondent dated 25.08.2015 in Complaint No.3 of 2010 and to direct the second respondent to refund the excess amounts collected hitherto from the petitioner along with interest.
2. The facts leading to the filing of this writ petition are as follows:
The petitioner-M/s.Krishnapatnam Port Company Limited has been promoted by C.V.R. Group of Companies and the petitioner-port was commissioned on 07.07.2008 with an outlay of Rs.1500 Crores for the first phase and Rs.4000 Crores for the second phase. It is stated that the present turnover of the company is around Rs.600 Crores. It is also stated by the petitioner in the affidavit filed in support of this writ petition that the petitioner has handled 8.21 million tonnes of cargo in the year 2008-2009 and 16.13 million tonnes in the year 2009-2010 in their port. The petitioner has been loading coal from October 2008 at Nidiguntapalem Station and from May 2009 at Krishnapatnam Station. Rake No.151 was loaded with coal on 13.11.2010, Rake No.152 was loaded with coal on 14.11.2010 and Rake No.153 was loaded with coal on 15.11.2010. Since the Railways did not provide in-motion rail weighbridge at Krishnapatnam Station, weighment of the rakes had to be done at Settigunta Station, which is about 200 Kms from Krishnapatnam Station. It was claimed by the Railways that Rake Nos.151, 152 and 153 were found to be overloaded based on the weighment done at Settigunta Station and hence, the Railways levied punitive charges as well as detention charges to the tune of Rs.70,71,783/- and Rs.3,99,400/- respectively. After weighment at Settigunta Station, Rake No.151 was stabled at Ontimitta Station, Rake No.152 was stabled at Hastavaramu Station and Rake No.153 was stabled at Ontimitta Station, due to the alleged excess loading. Since it was alleged that these rakes were overloaded, the petitioner was asked to off-load the alleged excess coal from the three rakes. Since the stations mentioned above had no infrastructure for loading or unloading of rakes and there were no approach roads for trucks to reach the loop lines on which the rakes were stabled, and no lighting facilities exist on the loop lines, and due to lack of infrastructure for handling bulk cargo, the cargo had to be off-loaded on the track side and it was carried by head loads for a distance of about 600 meters to the trucks, parked on the road. In view of this, the petitioner suffered heavy loss of cargo.
3. The petitioner states that the petitioner-Company had loaded 374 rakes prior to the above three rakes and none of those rakes were found to be overloaded. The petitioner also states that the coal is lighter in weight and the density of the coal is directly correlated to certain atmospheric conditions like wetness, moisture etc. Further, it is stated that in October 2009, Nellore District was experiencing heavy rainfall. After the cargo was loaded, Rake No.151 remained at Krishnapatnam Station for 11 hours, Rake No.152 for 15 hours and Rake No.153 for 5 hours, respectively. The wagons were dripping with water when weighment was done. The wetness was also found on the track as the water was dripping from the wagons. It is stated by the petitioner that the Chief Commercial Inspector of Guntakal Division of South Central Railway, stationed at Kadapa, who was inspecting the offloading of the rakes, had also witnessed the same. Thus, the petitioner states that excess weight alleged by railway administration was due to accumulation of rain water in the wagons and it was not at all due to overloading. It is further stated by the petitioner that loading of coal at Krishnapatnam Station is done under the supervision of the Railway Staff posted at the station for this purpose and the rakes were cleared for despatch only after the railway staff were satisfied that the rakes were loaded as per the terms and conditions of the Railways. The petitioner also states that the in-motion weighbridge at Settigunta is faulty and when rakes are weighed in the in-motion weighbridge, the speed of the train during the weighment process plays a major role. Further, it is stated that the tare weight of the wagon is stenciled after weighing the new wagons and in the process of use, due to wear and tear, the tare weight differs from the weight stenciled on it. Further, the weighbridge machine plays a vital role in the matter of overloading, as there would be error to the extent of 1%. Added further that the weighbridge at Settigunta Station was defective, and a complaint was filed on 11.12.2008 by seven exporting firms to South Central Railway about it. It is further stated that the Railways stopped weighment of rakes at Settigunta with effect from 18.11.2009 and issued orders for weighment of rakes at Nandalur Station, which shows that Railways were very much aware of the defective weighbridge at Settigunta Station.
4. With the above averments, the petitioner filed a complaint before the Railway Rates Tribunal of India, the third respondent herein, praying to declare that the punitive charges demanded and paid based on the readings of faulty weighbridge of Settigunta, is unreasonable, and to further declare that the levy of detention charges is unreasonable.
5. The respondents filed answer statement before the Tribunal denying the allegations made in the complaint. According to them, the complainant does not come under the purview of Section 36(c) of the Railways Act, 1989. He further submitted that the coal does not absorb water and hence the contention of the complainant that excess weight had been caused on account of heavy rain, is untenable. He further submitted that the complaint given by the seven companies regarding erratic functioning of the weighbridge at Settigunta, does not pertain to the period in dispute. Stating so, the respondents prayed for dismissal of the complaint filed by the complainant.
6. Before the Tribunal, on the side of the complainant, the Deputy General Manager, Mr.D.Durga Prasad, Krishnapatnam Port Company Ltd., was examined as C.W.1 and documents Exs.C1 to C17 were marked. On the side of the Railways, two witnesses were examined and documents Exs.R1 to R16 were marked. On the side of the Tribunal, Ex.T1-Spot Inspection Report, was marked. After considering all the pleadings and evidences adduced by both parties, the Tribunal passed the impugned judgment on 25.08.2015, dismissing the complaint filed by the complainant, the petitioner herein.
7. Challenging the judgment of the Tribunal, the present writ petition is filed.
8. The learned counsel for the petitioner submits that the punitive charges as well as the detention charges have been paid by the petitioner for no fault on their part, but to the faulty weighment of the weighbridge. He further submitted that the Tribunal failed to appreciate that the respondents miserably failed to take joint test weighments in accordance with law, by issuance of public notice as per Para-223 of the Indian Railway Code for Commercial Department. He further submitted that when the loading was done under the supervision of the Railway Staff, had there been any excess loading, it would have been visually seen by the Railway Staff and therefore, it is not proper on the part of the Railways to say that there was excess loading, after the loading has been completed. He further submitted that even though complaints were filed about the inaccuracy of the weighbridge by seven exporters, prior to the petitioner's complaint, no action was taken by the Railways and that the Tribunal has committed error by only relying upon the oral deposition of R.W.1, without appreciating the said fact. He further submitted that the deposition of R.W.1 was not substantiated by any document. Finally, he submitted that the judgment passed by the Tribunal suffers from material irregularities apparent on the face of the said judgment and it is marred with inconsistencies. He relied on a decision of the Hon'ble Supreme Court in L.Chandra Kumar v. Union of India and others, reported in 1997(2) SCR 1186, and submitted that the decision of the Tribunal is subject to scrutiny before a Division Bench of this Court, on the basis of the materials available. Stating so, the learned counsel for the petitioner has submitted that the judgment of the Tribunal has to be set aside and this writ petition has to be allowed.
9. Per contra, the learned counsel for the respondents, reiterated the submissions made on behalf of the respondents before the Tribunal, and submitted that the writ petition has to be dismissed.
10. Heard the learned counsel on either side and perused the materials available on record.
11. With regard to the pleadings made by the counsel for the petitioner/complainant that since the weighbridge was found defective, the Railways have stopped using the weighbridge from 18.11.2009, the Tribunal has given a finding that the respondents have themselves admitted the non-usage of weighbridge from 18.11.2009. Thereafter, considering the materials available on record, the Tribunal came to the conclusion that it cannot be said that the shifting and non-usage of weighbridge from 18.11.2009 is due to the representation made by the complainant but due to commercial reasons. The Tribunal has also stated that as per Ex.R2, the Certificate issued by the District Inspector, Legal Metrology (Weights and Measures) Department, Government of Andhra Pradesh, Kadappah, shows that the weighbridge had been verified and stamped on 19.11.2008, which was valid upto 18.11.2009. The Tribunal relied upon the documents Exs.R2 to R4 to come to the conclusion that calibrated test was done once in every month and the repeatability test was conducted on 15.10.2009, on the weighbridge in question and the accuracy was 100%. Thus the Tribunal came to the conclusion that the weighbridge at Settigunta was in working condition at the relevant point of time. With regard to the authority to demand punitive charges, the Tribunal has given a finding that the complainant has not questioned the authority to demand punitive charges, and they have questioned only the punitive charges based on faulty readings recorded at the weighbridge at Settigunta. Since the Tribunal already held that the functioning of the weighbridge at Settigunta was in order, based on the same, the Tribunal further held that it cannot be said that levying of punitive charges by the respondents is unreasonable.
12. With regard to the decision of the Hon'ble Supreme Court in Chandra Kumar's case (supra), which has been relied upon by the learned counsel for the petitioner, we find that the said decision deals with jurisdiction and a Division Bench of this Court has power to scrutinise the judgment of the Tribunal, and the same is not in dispute. But, on a perusal of the judgment of the Tribunal, this Court finds that the Tribunal has dealt with the matter in an elaborate manner and rendered the judgment. The entire judgment of the Tribunal is based upon facts. The Tribunal is a fact finding authority and it has dealt with the matter in detail, and came to the correct conclusion that the petitioner is not entitled to the reliefs as claimed by him. The reasons given by the Tribunal are clear, cogent, convincing and acceptable. The Tribunal has considered the case projected by the parties, taking into account the respective pleadings, oral evidence adduced as well as the documentary evidence exhibited on either side and after analysing the whole matter, came to a categorical conclusion that there is no merit in the contention of the petitioner and dismissed the complaint. We find no material so as to conclude that the Tribunal did not apply its mind while rendering the judgment.
13. In view of the reasons stated supra, the judgment passed by the Railway Rates Tribunal of India, the third respondent herein, dated 25.08.2015 in Complaint No.3 of 2010, is confirmed and the writ petition is dismissed. No costs.