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2014 (9) TMI 1242 - HC - Indian LawsLevy of penal demurrage charges - period from 2nd May 2011 to 31st July, 2011 - rate Circular No. 74 of 2005 as modified by the rate Circular dated 17.01.2008 including the consequential orders - Whether investment of the powers of the Central Government under the Railway Act, 1890 to the Railway Board by notifications issued under the Railway Board Act comes to an end after the enactment of Act 1989? - Whether the Railway Board can exercise powers of the Central Government after enactment of Act 1989 without there being any further investment of power of Act 1989 by the Central Government? - Whether the Railway Board can exercise the powers of the Central Government and the rate Circular, Ext. P11 issued by the Railway Board can be treated to be the rate Circular issued by the Central Government? - HELD THAT - Rate Circular which has been signed by the Joint Director Traffic Commercial (Rates), Railway Board is an order merely authenticating the order of the Central Government according to the prescribed procedure. The order is professed to have been issued by the Government of India, Ministry of Railways which was entitled in law to transact the business of Railway. The petitioners in their reply affidavit while replying paragraph 4 of the counter affidavit quoted above has only reiterated that the Railway Board has no authority or jurisdiction to issue orders of the Government of India, Ministry of Railways. The rate Circular having been expressed in the name of the Government of India, Ministry of Railways, Railway Board we have no reason to not take the Circular as it is described as rates issued by the Government of India, Ministry of Railways. The rate Circular, Ext. P11 issued is to be treated as the Circular issued by the Central Government and cannot be held to be beyond jurisdiction of Sec. 30 or violative of Sec. 30 of Act 1989. Whether the Central Government in exercise of the powers under Sec. 30 of Act 1989 as a delegatee of the power to fix the rate can further delegate the power to fix rate to any other authority, i.e. including the CCM, COM and DRM? - Whether the rate Circular, Ext. P11 sub delegates the power to fix the rate of demurrage charge on CCM, COM and DRM? - HELD THAT - The powers in the rate circular given to CCM, COM and DRM are not sub-delegation of any power of fixing rate, rather rate circular provides for conditions for implementing the rates fixed by the Central Government - CCM, COM and DRM as authorised under paragraph 3.3 are thus only statutory authorities, which have been indicated in the delegated legislation, i.e., rate circular who are to implement the rate circular as per the conditions therein. Thus, the power given to the above authorities is a statutory power to be exercised on conditions as enumerated in rate circular and is not sub-delegation of any of legislative power of the Central Government under Section 30 of the Act, 1989 - there are no substance in the submission of learned counsel for the writ petitioners that there is sub-delegation of legislative power in favour of CCM, COM and DRM. Whether the rate Circular Ext. P11 cannot be enforced having not been published in the Gazette of India or by any other accepted mode? - HELD THAT - The rate circular was issued in 2005 and the demurrage, according to the rate circular, was being paid and it was only when penal demurrage charges were imposed by the Railway authorities, challenge was laid in the Writ Petition. Various notices issued by Station Master and Goods Superintendents, where Exhibits P4 to P10 were under challenge, where three times and six times of normal demurrage rates were levied. Whether due to the provisions of the Kerala Head Load Workers Act restricting the right of employer in a scheme covered area to engage only registered head load workers the Railway Administration cannot demand penal demurrage charges from the petitioners? - HELD THAT - The rate circular is uniformly applicable to entire country and making an exception for the State of Kerala in penal demurrage charges has rightly been held not to be acceptable - in the event of consignee, on account of any reason beyond his control, had suffered penal demurrage charges, he is at liberty to move an application for waiver - the submission of writ petitioners that on account of operation of Headload Workers Act in the State of Kerala, penal demurrage charges should not be imposed, cannot be accepted. Whether increased demurrage charges are not leviable to be charged due to lack of amenities in the various Railway Goods Sheds? - HELD THAT - The contention of appellant's counsel is that due to lack of amenities, loading and unloading workers of the writ petitioners are unable to perform their duties efficiently and it is incumbent on the authorities to provide for amenities. The learned Single Judge has gone into the said submission and after noticing the pleadings made on behalf of the Railways, had found that on the basis of said submission the challenge to penal demurrage charges cannot be upheld - the respondents have pleaded that amenities have been provided for - the challenge to rate circular cannot be upheld. Whether levy of increased/penal charges have been made by Station Masters, Goods Shed Superintendents and other Officers of the Railway Administration and the notices Exts. P4 to P10 are illegal and unenforceable? - HELD THAT - The learned Judge perused the records and was fully satisfied that the order for imposing penal demurrage charges was passed by the designated authority as specified in Exhibit P11. It was held that Exhibits P4 to P10 were consequential proceedings passed pursuant to the orders passed by DRM - there are no good ground to have any different view with regard to above submission. The writ petitioners are permitted to make an application for waiver before the Station Manager/Goods Supervisor within 30 (thirty) days from today giving all details along with reasons and relevant records as necessary - Station Master/Goods Supervisor shall forward the application for waiver of demurrage charges to the Divisional Officer with his remark within 15 (fifteen) days of receipt of the application - appeal disposed off.
Issues Involved:
1. Whether investment of the powers of the Central Government under the Railway Act, 1890 to the Railway Board by notifications issued under the Railway Board Act comes to an end after the enactment of Act 1989? 2. Whether the Railway Board can exercise powers of the Central Government after enactment of Act 1989 without there being any further investment of power of Act 1989 by the Central Government? 3. Whether the Railway Board can exercise the powers of the Central Government and the rate Circular, Ext. P11 issued by the Railway Board can be treated to be the rate Circular issued by the Central Government? 4. Whether the Central Government in exercise of the powers under Sec. 30 of Act 1989 as a delegatee of the power to fix the rate can further delegate the power to fix rate to any other authority, i.e. including the CCM, COM and DRM? 5. Whether the rate Circular, Ext. P11 sub-delegates the power to fix the rate of demurrage charge on CCM, COM and DRM? 6. Whether the rate Circular Ext. P11 cannot be enforced having not been published in the Gazette of India or by any other accepted mode? 7. Whether due to the provisions of the Kerala Head Load Workers Act restricting the right of employer in a scheme covered area to engage only registered head load workers the Railway Administration cannot demand penal demurrage charges from the petitioners? 8. Whether increased demurrage charges are not leviable to be charged due to lack of amenities in the various Railway Goods Sheds? 9. Whether levy of increased/penal charges have been made by Station Masters, Goods Shed Superintendents and other Officers of the Railway Administration and the notices Exts. P4 to P10 are illegal and unenforceable? Detailed Analysis: Issue 1: The court held that the investment of powers of the Central Government under the Railway Act, 1890 to the Railway Board does not come to an end after the enactment of the Railway Act, 1989. The Railway Board continues to exercise the powers of the Central Government, and the provisions of the Railway Act, 1989 do not indicate otherwise. Issue 2: The Railway Board can exercise the powers of the Central Government after the enactment of the Railway Act, 1989 without any further investment of power by the Central Government. The court noted that the Railway Board functions as the Ministry of Railways and the Chairman of the Railway Board is the Principal Secretary in the Ministry of Railways. Issue 3: The rate Circular issued by the Railway Board is to be treated as a Circular issued by the Central Government. The court found that the Circular was issued by the Government of India, Ministry of Railways, and thus, it is valid and within the jurisdiction of Section 30 of the Railway Act, 1989. Issue 4: The Central Government, in exercise of the powers under Section 30 of the Railway Act, 1989, can delegate the power to fix rates to other authorities such as the CCM, COM, and DRM. The court found that the delegation of power to implement the rates under specified conditions does not amount to sub-delegation of legislative power. Issue 5: The rate Circular does not sub-delegate the power to fix the rate of demurrage charges to the CCM, COM, and DRM. Instead, it provides conditions under which the rates fixed by the Central Government can be implemented progressively. The court held that the power given to these authorities is to implement the rates, not to fix them. Issue 6: The rate Circular can be enforced even if it has not been published in the Gazette of India. The court noted that the Railway Act, 1989, and the rate Circular do not prescribe any specific mode of publication. The Circular was published on the Railway Website and affixed on notice boards at relevant locations, which is considered reasonable. Issue 7: The provisions of the Kerala Head Load Workers Act do not exempt the petitioners from paying penal demurrage charges. The court held that the unloading of consignments is the responsibility of the consignee, and the rate Circular is uniformly applicable across the country. Petitioners can apply for a waiver of demurrage charges if they face difficulties due to local conditions. Issue 8: The lack of amenities in various Railway Goods Sheds does not justify the non-levy of increased demurrage charges. The court found that the respondents had provided necessary amenities, and this issue does not invalidate the rate Circular. Issue 9: The levy of increased/penal charges by Station Masters, Goods Shed Superintendents, and other Officers is valid, as the decisions to impose such charges were taken by the designated authorities (CCM, COM, and DRM) as per the rate Circular. The court confirmed that the original records showed compliance with the rate Circular's provisions. Conclusion: The court upheld the judgment of the learned Single Judge, confirming the validity of the rate Circular and the imposition of penal demurrage charges. The petitioners were permitted to apply for a waiver of demurrage charges within 30 days, and the relevant authorities were directed to consider such applications in accordance with the prescribed procedure.
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