M/S Sumit Trading Co vs The Union Of India
2021 Latest Caselaw 4556 Patna

                IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.7833 of 2020
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M/s Sumit Trading Co. a partnership firm, 310, Ashiana Hari Niwas, New Dak Bunglow Road, Patna through one of its partners namely Rekkha Agarwal female aged about 47 years Wife of Dinesh Agarwal resident of A- 506, Bansal Tower, R.K. Bhattacharya Road, Patna.

... ... Petitioner Versus

1. The Union of India through the Secretary, Ministry of Railway, Government of India, New Delhi.

2. The General Manager, N.F. Railway, Maligaon, Guwahati, Assam.

3. The Divisional Railway Manager (Commercial) N.F. Railway, Katihar.

4. The Chief Goods Supervisor, N.F. Railway, Ranipatra, Purnea.

5. The Station Superintendent, N.F. Railway, Ranipatra, Purnea.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. Gautam Kumar Kejriwal, Advocate For the Railways : Mr. Ramadhar Shekhar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT Date : 09-09-2021

Heard learned counsel for the petitioner and learned

counsel for the Railways through video conference. Learned counsel

for the petitioner hereby undertakes that all defects pointed out by

the stamp reporter shall be removed, and compliance with the

conditions of the notices of this Court with regard to acceptance of

e-filing shall be made, without delay immediately upon resumption

of normal physical functioning of the Court, and in any event within

one month thereof.

2. The following reliefs as formulated by the petitioner Patna High Court CWJC No.7833 of 2020 dt.09-09-2021

have been claimed in the writ petition -

" (i) For issuance of a writ in the nature of certiorari for quashing of the demurrage penalty statement dated 11.07.2019 imposed and issued by the respondent Chief Goods Supervisor without any prior notice upon the petitioner and without any opportunity of hearing afforded to the petitioner before imposition of such penalty;

(ii) For issuance of a writ in the nature of certiorari for quashing of the letter Number 869400 (PDC) dated 23.01.2020 issued by the respondent-Divisional Railway Manager (Commercial) North Frontier Railway, Katihar;

(iii) For issuance of a writ or order or direction upon the respondent Divisional Railway Manager (Commercial) North Frontier Railway, Katihar to consider, apply mind, award an opportunity of hearing to the petitioner and to pass a speaking order on the application dated 14.07.2019 submitted by the petitioner seeking waiver of demurrage penalty charges;

(iv) For issuance of a writ in the nature of an order of restrain upon the respondents from taking any coercive action for recovery of the demurrage penalty for a sum of Rs. 8,69,400/- imposed by the respondents.

(v) For holding and a declaration that the application for waiver of demurrage penalty submitted by the petitioner being in the nature of appeal against the infliction of financial punishment, the Divisional Railway Manager (Commercial) North Frontier Railway, Katihar ought to have applied his mind as quasi judicial authority and decided the same by way of a speaking order dealing with each and every aspect of the matter and not in a slipshod Patna High Court CWJC No.7833 of 2020 dt.09-09-2021

manner as communicated through the impugned letter;

(vi) For grant of any other relief(s) to which the petitioner is found entitled in the facts and circumstances of the present case.

3. Mr. Gautam Kumar Kejriwal, learned counsel for the

petitioner, assails the impugned statement of demurrage charges

(Annexure-3) and the order of the Divisional Railway Manager

dated 23.01.2020 raising a demand of Rs. 8,69,400/- by way of

demurrage charges (Annexure-5). It is submitted that such demand

has been made without prior show cause notice and so also the

petitioner was not supplied a copy of the recommendation of the

Chief Goods Supervisor (respondent no. 4). In any event, the

petitioner had raised various grounds in its waiver application

(Annexure-4) which have not been dealt with and the same has

been disposed of by a non- speaking order in complete violation of

natural justice.

4. Learned counsel for the respondent-Railway appears

and opposes the writ petition, inviting reference to Clause-3.0 of the

Railway's Circular dated 19.05.2016 (Annexure-B to the counter

affidavit) which provides for an appeal against orders of waiver

which lies before the higher authority. It is submitted that the

petitioner has however rushed to this Court without availing of such

alternative remedy available to it.

5. Having heard the parties and on a consideration of the Patna High Court CWJC No.7833 of 2020 dt.09-09-2021

materials on record, this Court finds that the petitioner's contention

that the demurrage charges has been demanded without prior show

cause notice has not been controverted in the counter affidavit.

Besides, a perusal of the impugned order of demand shows that the

same is a non-speaking one and no reasons have been afforded for

not accepting the pleas raised in the petitioner's waiver petition

(Annexure-4). As such, the impugned action of the respondents is

clearly in violation of the principles of natural justice. It is well

settled that a writ petition would be maintainable where the action

complained of is in violation of natural justice.

6. In the above view of the matter, the impugned order

dated 23.01.2020 (Annexure-5) is set aside and the matter

remanded to the Divisional Railway Manager for passing orders

afresh after grant of opportunity of hearing to the petitioner in

accordance with law.

7. It is made clear that in view of the ongoing Covid-19

pandemic, any correspondence between the parties may be made

through e-mail and the petitioner shall be at liberty to request for

hearing through video conference. To facilitate disposal, the

petitioner shall furnish his mobile number and e-mail ID to the

concerned respondent within a week from today.

8. The writ petition stands allowed to the extent above.

9. Office shall follow-up to ensure that all defects are

removed and compliance with the notices of this Court are made by Patna High Court CWJC No.7833 of 2020 dt.09-09-2021

the petitioners within the stipulated time provided in para-1

hereinabove, failing which the matter shall be brought to the notice

of this Court.

(Vikash Jain, J) Ibrar//-

AFR/NAFR              NAFR
CAV DATE              N.A.
Uploading Date        10 .09.2021
Transmission Date     N.A.