Union of India and Anr. Vs M/S Manas Salt Iodisation Industries Ltd.

2. This appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the judgment and order dated 06.08.2015, passed in Claim Application No.OA-III-15/2009 (Old) and Claim Application No. OA-III/GHY/2009/0015 (New) by the Railway Claims Tribunal, Guwahati Bench. It is to be noted here that vide impugned judgment and order dated 06.08.2015, the Railway Claims Tribunal, Guwahati Bench, has directed the appellants herein to pay a sum of Rs. 1,92,622/, along with interest @ 6% per annum, from the date of filing the original application, i.e. 03.08.2009, with costs.

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3. For the sake of convenience and for avoiding confusion, title of the parties, as referred to in the original Claim Application, No.OA-III15/2009 (Old) and Claim Application No. OA-III/GHY/2009/0015 (New) before the Railway Claims Tribunal, will be adopted herein this appeal.

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4. The background facts leading to filing of the present appeal, is briefly stated as under:-

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“The applicant as consignee had booked a consignment of 35597 bags of salt, on 09.02.2008 under Invoice No.1 to 4 and Railway Receipt No. 212000980 to 212000983 from Halvad (HVD) to Dikom (DKM), paying all the freight money at booking point vide M.R. No. 743789 dated 09.02.2008, and also took delivery of the consignment at destination point as per receipt. The respondent- Railway had collected freight on distance of 3236 km, instead of correct freight charging distance of 3181 km and the correct freight charging rate @ Rs. 1609.10 per MT.

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The pleaded case of the applicant is that as per Railway Board’s Circular No. TCR/1125/94/3, dated 06.10.1994, read with N.F. Railway Circular No. C/374/RG/1/Pt. X, dated 21.11.1994 consignment should be booked by the shortest route and at the cheapest rate of freight.

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Further case of the applicant is that as per Railway Board’s Concession Circular No. TCR/1078/2003/1, dated 30.04.2003 and 29.05.2006, a consignment booked over distance 3001 km are entitled to get freight concession @ Rs. 25% at the time of booking, but the respondent, at booking point, made calculation mistake for which freight was overcharged. Further case of the applicant is that HVD and DKM stations are regular goods booking and delivery Stations known as good shed and these stations are never statutorily

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notified by Railway as Terminal Stations. And inspite of that, the Railway had collected terminal charges despite the fact that Railway Board’s Circular No. TCR/1078/2007/06, dated 29.05.2007 and 17.07.2007 and 18.09.2007, terminal charges were not leviable on commodities packed in bag, tin, cartoon, bale or crate. The applicant then filed one representation before the respondent authority claiming refund. But the same failed to yield any result.

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As the representation filed by the applicant had failed to yield any result, the applicant had approached the Railway Claims Tribunal claiming refund of the excess amount of freight as well as terminal charges.

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The respondent No.1 and 2 had filed their written statement contesting the claim of the applicant. Besides challenging the identity of the applicant, they had taken a stand that the terminal charges have been collected correctly. Further it is stated that according to CCM/ Rates’ letter dated 08.04.2010, the distance ex. HVD to DKM via PNU, BKI, MGS, KIR is 3255 km, but the Railway had claimed freight for 3236 km. Another stand taken by respondent No.2 is that as per Railway Board’s Rate Circular No.47 of 2006, 25% concessional freight should not be less that the concessional freight of 3000 kms. And that the freight for 3000 km was worked out to Rs. 1234.32 after granting 20% concession. Freight for 3177 km with 25% concession comes to Rs. 1206/- which is less than freight for 3000 Kms. And as such only 20% concession was granted and that booking and

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destination stations are Railway’s own terminal and hence, terminal charges were rightly collected.

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The learned Tribunal then framed following 6(six) issues for decision:-

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1. Whether notice served under Section 106 of the Railways Act, 1989 by the applicant to the respondent is in time and maintainable?

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2. Is the application bad for misjoinder of parties?

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3. Whether the respondent realized freight as per correct distance?

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4. Whether the applicant is entitled for the concession as alleged in his application?

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5. Whether the respondent is entitled for terminal charges?

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6. Relief and order?

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Then hearing both sides the learned Claims Tribunal, vide impugned judgment and order dated 06.08.2015, had directed the appellants herein to pay a sum of Rs. 1,92,622/-, along with interest @ 6% per annum from the date of filing the original application, i.e. 03.08.2009, with costs.

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5. Being aggrieved with the impugned award of the Railway Claims Tribunal, the appellant preferred the present appeal on the following grounds:-

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(i) The learned Tribunal had erred in law as well as on facts while passing the impugned judgment and order.

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(ii) That the learned Tribunal had wrongly held that the appellant No.1 has made an admission vide Exhibit-A-21, which is nothing but information furnished under the RTI Act and thereafter, came to a conclusion that the respondent is entitled to refund of the claim amount. But the fact remains that the said letter was issued for estimate purpose only and has no relation with the alleged claim and the learned Tribunal had failed to consider the said aspect.

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(iii) The learned Tribunal had wrongly interpreted the provisions as laid down under various circulars.

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(iv) The learned Tribunal had wrongly placed reliance on a clarification letter No.TCR/ 1078/2007/6 dated 17.07.2007, while deciding Issue No.5 of the impugned judgment, which was superseded by another circular i.e. Rates Circular No.92/2007 and for non-consideration of the aforesaid circular, the impugned judgment is liable to be set aside.

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(v) The learned Tribunal had wrongly interpreted the contents of Rates Circular No.92/2007, while deciding Issue No.5 and the learned Tribunals have failed to consider the contents of the said circular in its proper perspective.

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(vi) The learned Tribunal had wrongly calculated the amount refundable to the respondent.

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(vii) That the schemes (Rates Circulars) are commercial in nature and as such, each and every term appeared in the schemes should strictly be followed. But, the learned Tribunal had failed to consider the said aspect of the matter.

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(viii) It is well-settled principle of law that while interpreting the statutory provision, no word can be added to a statute or read a word into it which are not part of it, especially when a literal reading of the same produces an intelligible result and the Courts have to administer the law as they find it and it is not permissible for the Court to twist the clear language of the enactment, in order to avoid any real or imaginary hardship which such literal interpretation may cause and the learned Tribunal had failed to consider the aforesaid principle and under such circumstances, it is contended to set it aside.

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6. Having heard the submission of learned counsel for both the parties, I have carefully gone through the memo of appeal and the grounds mentioned therein and perused the impugned judgment passed by the learned Member, Railway Claims Tribunal, Guwahati, dated 06.08.2015.

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7. Mrs. Chakraborty, learned counsel for the appellants submits that the letter dated 17.07.2007 is not a Rates Circular, but a letter and it relates to the Rates Circular No.58/2007, dated 29.05.2007 and as soon as the said Rates Circular No.58/2007 is superseded vide Circular No.74/2007, dated 19.07.2007, the letter dated 17.07.2007 had lost its relevancy and a coordinate Bench of this Court in MFA No.100/2011, vide order dated 25.06.2015, held that the letter dated 17.07.2007, is non-est as soon as the original Rates Circular No.58/2007 was superseded, and therefore, the finding of the learned Tribunal is erroneous.

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7.1. Mrs. Chakravarty also submits that the learned Tribunal also arrived at an erroneous finding as it had relied upon Exhibit-A-21 which is nothing but information furnished under the RTI Act for estimate purpose and it cannot be read as a Circular while already a Circular, being Railway Board’s Rate Circular No.47 of 2006, was holding the field and that 25% concessional freight can be granted when the distance is 3001 km and above, and that the minimum freight should not be less than the concessional freight applicable for 3000 km. And this aspect has been overlooked by the learned Tribunal and on such count, Mrs. Chakravarty has contended to allow the appeal by setting aside the impugned judgment and order.

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8. Per contra, Ms. Sharma, learned counsel for the respondent submits that the letter dated 17.07.2007 is admittedly not superseded and as such, the learned Tribunal had rightly place reliance on the same. It is the further submission of Ms. Sharma that the distance between Halvad and Dikom was wrongly calculated by the Railway at the time of booking of the consignment and the said fact is apparent from the own letter of the Railway i.e. Exhibit-A21, which is the reply given in RTI, and relying upon the aforesaid document, the learned Tribunal had calculated the amount, which the respondent herein is entitled to refund. Ms. Sharma further submits that the appellants herein had charged the fare for a distance of 3236 km, but in fact the distance from Halvad to Dikom is 3177 km and further, in the Circular dated 05.06.2007, only 50 stations are notified wherein terminal charges can be levied and neither the name of Halvad nor Dikom finds mention in the said Circular and as such, no terminal charges can be levied. Therefore, it is contended to dismiss the appeal.

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9. In view of the issues, being canvassed during argument by learned Advocates of both sides and also in view of the findings recorded by the learned Tribunal, the points to be determined by this Court is formulated as under:-

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(i)Whether the learned Tribunal is justified in arriving at a finding that the respondent is entitled to terminal charges in view of the Railway Board’s letter dated 17.07.2007, while the same was issued in connection with Rate Circular No. 58 / 2007, dated 29.05.2007 which was superseded by Rate Circular No.74/2007, dated 19.07.2007?

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(ii) Whether the respondent/applicant is entitled to claim 25% rebate in view of Rates Circular No.47/2006?

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10. It appears from the impugned judgment of the Tribunal that the learned Members, while arriving at the finding in Issue No.4, i.e. whether the applicant is entitled to concession as alleged in his application, held that the Deputy Chief Claims Officer & Public Information Officer of Western Railway, under Right to Information Act apprised the applicant/respondent vide Exhibit-A21, that the applicant is entitled to concession @ 25% for the salt consignment as per Rates Circular No.47/2006 and also 6% concession for N.E. States as per Rates Circular No.7/2008 (Dikom Station being in the State of Assam) and thereafter, decided the issue in favour of the applicant.

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11. Further it appears that while deciding the Issue No.5, as to whether the respondent is entitled for terminal charges, the learned Tribunal had held that as per Railway Board’s letter No.TCR/1078/2007/6, dated 17.07.2007 ‘the terminal charges will be levied on all bulk and loose commodities. Whenever the

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commodity is packed in bag, tin, carton, drum, bale or crate,
such commodity should not be treated as bulk and loose
commodity. All other commodities may be treated as bulk and
loose commodities. However, terminal charges will be levied on
any consignment requiring crane handling. In addition, all
liquid consignments moving loose in wagons will also be levied
terminal charges. Moreover, if a wagon is loaded with both type
of commodities, the wagon should be treated as having loaded
with bulk and loose commodities.’

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11.1. Thereafter, the learned Tribunal had arrived at the finding that in the Railway Board’s Circular dated 18.09.2007 it has been mentioned about supersession of Circulars dated 29.05.2007 and 19.07.2007 only and not of Railway Board’s letter dated 17.07.2007. It has also been held that in the Circular dated 18.09.2007, commodities have been categorized into three heads as under:-

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(i) Iron Ore traffic,

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(ii) All other traffic and

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(iii) Container traffic

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11.2. But there is no mention about commodities which are packed in bag, tin, carton, drum, bale or crate, which shows that Railway Board’s letter dated 17.07.2007 still holds good and the applicant had booked salt packed in bags. As such, it should not fall under the category on which terminal charges are levied and thereafter, decided the issue in favour of the applicant.

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11.3. Thereafter, the learned Tribunal proceeded to calculate the refund as under:-

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a) 2460 MT salt booked x Rs.1609.10 per MT	:	Rs.39,58,386/-
b) + 2% Development Charge + 7% Busy Season Charge	:	Rs. 3,56,255/- Rs.43,14,641/-
c) – 25% Rebate on salt booked over 3001 km	: (-)	Rs.10,78,600/- Rs.32,35,981/-
d) – 6% rebate for N.E. States	: (-)	Rs. 1,94,159/-
e) Freight should be	:	Rs.30,41,822/-
f) Freight paid	:	Rs.34,28,603/-
g) Freight should be	:	Rs.30,41,822/-
Freight overcharged	:	Rs. 3,86,781/-

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12. It is also to be noted here that the appellant, in the memo of appeal had taken a stand that the Railway Board has been issuing various Circulars from time to time for levy of terminal charges and all the Circulars so issued by the Railway Board are binding. The Rates Circular No.92/2007, which is one of such Circulars, had superseded the earlier Rates Circular Nos.58/2007, which is on the same subject matter, and the learned Tribunal has allowed the claim on account of terminal charges on the basis of a letter dated 17.07.2007, which was nothing but a clarification of Rates Circular No.58/2007, and as the said Circular has already been superseded by the Rates Circular No.92/2007, the letter dated 17.07.2007 had lost its significance. Mrs. Chakravarty had also pointed this out at the time of hearing that this aspect has already been dealt with by a coordinate Bench of this Court in MFA No.100/2011, wherein, vide order dated 25.06.2015, it was held that the letter dated 17.07.2007 is non-est as soon as the original Rates Circular No.58/2007, was superseded and as such, the finding of the learned Tribunal is erroneous on this point and therefore, it is contended to set it aside.

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13. There appears to be substance in the submission of Mrs. Chakravarty, the learned Counsel for the appellants. The stand, so taken appears to be justified and reasonable. The letter dated 17.07.2007, being a letter of clarification of the Rate Circular No.58/2007, had lost its significance with supersession of the said Rate Circular by the Rate Circular No.92/2007, which are on the same subject matter. Therefore, this Court is inclined to record concurrence with the submission of Mrs. Chakravarty, the learned counsel for the appellants and also with the decision of the coordinate Bench of this Court in MFA No.100/2011.

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14. Further, from a perusal of the Circular at Sl.No.97(G)/2006, dated 06.06.2006, reveals that for availing the benefit of 20% concession over a distance of 3001 km and above, the minimum freight should not be less than the concessional freight applicable for 3000 km and if the minimum freight for 3000 km and above is worked out at Rs. ‘X’ after granting 20% concession, the minimum freight for 3001 km and above after granting 25% concession should not be less than the said Rs. ‘X’ and only on fulfillment of the aforesaid condition, the respondent will be entitled to the benefit of 25% concession on normal freight rate for the distance which would be excess to 3000 km.

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15. In the instant case, the freight for 3000 km is worked out to be Rs.1234.32 after granting 20% concession. Freight for 3177 km with 25% concession comes to Rs.1206/-, which is less than freight for 3000 km and as such, the applicant/respondent having failed to satisfy the said condition, to the considered opinion of this Court, is not entitled to avail concession of 25% as claimed. However, this aspect eschewed consideration of the learned Tribunal.

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15.1. It also appears from the impugned judgment and order of the Tribunal that the learned Tribunal had relied upon the Exhibit-A21, a reply to an application filed under the RTI Act by the applicant/respondent and thereafter worked out the sum which the applicant/respondent is entitled to refund. The learned Tribunal had never considered and discussed the Circular at Sl. No. 97(G)/2006, dated 06.06.2006. Instead, it had relied upon the Exhibit-A21, ignoring the purpose for which it was issued. It is the stand of the appellant that the said Exhibit-A21 was issued for estimate purpose only. That being so, it cannot be read like a Circular, as hardly it had such a force.

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16. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character. (See- N asiruddin And Ors vs. Sita Ram Agarwal, reported in 2003 (2) SCC 577,).

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17. In the case in hand the learned Tribunal had ignored the Circular at Sl.No.97(G)/2006, dated 06.06.2006, while granting the benefit of 25% concession to the applicant/respondent. Instead it had relied upon Exhibit-A21 which has no legal force at all. And resultantly, there is miscarriage of justice.

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18. Thus, having heard the submission of learned Advocates of both sides, and considering the facts and circumstances on the record, I find sufficient merit in the appeal and accordingly, the same stands allowed. The impugned judgment and order, so passed by the learned Tribunal stands set aside and quashed.

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19. The matter stands remanded to the learned Tribunal with a direction to decide the entitlement of the applicant/respondent, a fresh, as per Circular at Sl.No.97(G)/2006, dated 06.06.2006, and also taking note of the distance between the two stations i.e. Halvad and Dikom as mentioned in Exhibit-A21. This exercise has to be carried out within a period of three months from the date of receipt of this judgment and order and giving an opportunity of being heard to both the parties. Both the parties are directed to appear before the learned Tribunal on 24.02.2025.

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20. In terms of above, this appeal stands disposed of. The parties have to bear their own cost.

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21. Send down the record of the learned Tribunal forthwith.

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J U D G E

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Comparing Assistant

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Union of India and Anr. v. M/S Manas Salt Iodisation Industries Ltd.

Case brief

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Union of India and Anr. v. M/S Manas Salt Iodisation Industries Ltd.

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