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TMI Blog2014 (9) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 wai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rur and Palakkad junction in railway wagons are unloaded by workers registered with the Kerala Headload Workers Board. The working hours of various Goods Sheds are from 6.00 a.m. to 10.00 p.m. For unloading goods brought by railway wagons free time is allowed. At the relevant time free time allowed for a full rake was nine hours, for a mini rake of 20 wagons 5 hours and for a rake of 21 wagons 7 hours. On the expiry of free time, demurrage charges were being levied at the rate of ₹ 100/- per wagon per hour. Demurrage charges are levied to ensure its speedy clearance and movement of railway wagons. By the rate Circular No. 74 of 2005 dated 19.12.2005 issued in exercise of the powers under Section 30 of the Railways Act, 1989 rates of demurrage charges were fixed. One of the provisions in the said Circular provided that in case excessive congestion takes place at any terminal, the Chief Commercial Manager (CCM), Chief Operations Manager (COM) at the Zonal level and the Divisional Railway Manager (DRM) at the Divisional level can levy the demurrage charges progressively increasing the rate subject to a maximum of six times of the prevalent rate. In pursuance of the rate Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has also been filed by the petitioners. 5. The arguments in the Writ Appeals have been led by Shri George Jacob. We have also heard Shri K. Sreekumar, Senior Advocate, Shri Lal K. Joseph and other counsel appearing in the different Writ Appeals. Shri C.S. Dias, Standing Counsel for the Railways led the arguments on behalf of the respondents. We have also heard Shri James Kurian, Standing Counsel for the Railway. 6. Learned counsel for the appellant in support of the appeals raised various submissions as to be noted hereinafter. (i) Learned counsel for the appellant submitted that the power to fix rates is vested with the Central Government under Section 30 of the Railways Act, 1989 (hereinafter referred to as 'Act 1989') whereas the rate Circular, Ext. P1 has been issued by the Railway Board which has no authority or jurisdiction to fix the rates. Hence the rate Circular is without jurisdiction. (ii) It is submitted that although powers under the Indian Railways Act, 1890 (hereinafter referred to as 'Act 1890') of the Central Government to fix rates were invested to the Railway Board under the Railway Board Act, 1905 (hereinafter referred to as 'Act 1905 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the free time allowed. Goods Sheds are the scheme covered area under the Kerala Headload Workers Act under which the petitioners are compelled to employ only headload workers registered with the Headload Workers Board. The headload workers are not willing to work even on extra payment after 5.30 p.m. (xi) It is further submitted that the Goods Sheds do not have necessary infrastructure facility including toilets and other facilities for workers which is a hindrance in the working of the workers in the free time allowed for clearing the wagons. There are no amenities in different Good sheds. 7. Refuting the submissions made by the learned counsel for the petitioners, learned counsel appearing for the Railway has submitted that imposition of increased penal demurrage charges is in accordance with the provisions of Act, 1989. He submitted that the submission that the Railway Board has no jurisdiction to fix the rate under Sec. 30 of Act, 1989 is incorrect. It is submitted that Railway Board was initially invested with the powers of the Central Government to fix rates under Act, 1905. It is submitted that the Railway Board functions as the Railway Ministry in the Central Government. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges under the said rate Circular. It is submitted that before imposing penal rate of demurrage charges 48 hours' advance notice as required by the rate Circular is given to all concerned. With regard to the submissions of the petitioners that the headload workers in Kerala do not work from 6.00 a.m. to 10.00 p.m. it is submitted that the rate Circular are uniformly applied in the entire country and no exception can be made to State of Kerala. It is submitted that unloading of the wagons is the responsibility of the consignee. It is the consignee who has to take all steps for unloading and to arrange workers for unloading wagons is the duty and responsibility of the consignee who alone is responsible for the said requirement. In so far as lack of amenities in the Goods Sheds is concerned it is submitted that all the Goods Sheds are fully equipped with all necessary amenities and the above allegation is incorrect. Lastly, it is submitted that under the Indian Railways Code Tariff (Commercial Department), petitioners can apply for waiver of penal demurrage charges giving details on the grounds on which waiver is prayed for which shall be considered by the competent Railway authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the parties and the issues as noted above, it is necessary to have a look on the statutory provisions regulating the field. 11. Act, 1890 was enacted to consolidate and amend the law relating to Railway in India. Section 29 of Act, 1890 provided for power of the Central Government to fix maximum and minimum rates. Section 46C(d) of the Act defining demurrage as well as Sec. 29 are quoted as below: Section 46C(d) demurrage means the charge levied for the detention of any rolling stock after the expiry of free time, if any, allowed for such detention . Section 29. The Central Government may by general or special order fix maximum and minimum rates for the whole or any part of a railway, other than a minor railway, and prescribe the conditions in which such rates will apply . Railway Board was constituted under resolution of the Government of India in 18th February, 1905. Act, 1905 enacted to provide for investing the Railway Board with the powers of the Governor General in Council under Act, 1890. Section 2 of the Act provided that the Governor General in Council may by notification invest the Railway Board with all or any powers of the Governor General in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amend the conditions attached to a station to station rate other than conditions introduced in compliance with an order made by the Tribunal; and (d) charge any lump sum rate . Section 200 of Act, 1989 is provision for repeal and saving. In exercise of the powers under Sec. 30 the rate Circular No. 74 of 2005 dated 19.12.2005 (Ext. P11) had been issued. Para 2.2 contains the details of free time for loading and unloading of wagons at Goods Sheds and sidings. Paras 3.2 and 3.3 which are relevant for the present case are as follows: 3.2. For other than steel plants: In case of other rail users, demurrage charge @ ₹ 75/- per 8 wheeled wagon per hour or part of an hour for detention of wagon in excess of the permissible free time for loading or unloading shall be levied. 3.3. In case excessive congestion takes place at any terminal/steel plant, CCM/COM/DRM can increase the demurrage rates, even at progressively increasing rate subject to a maximum of six times of the prevalent rate. This penal demurrage rates should be implemented only after giving wide publicity and due notice of 48 hours and should be applicable for the notified period. Corrigendum da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflected from the face of the order itself. It can be seen that Ext. P11 comprises two separate orders such as orders Dated 19.12.2005 and 17.01.2008, dealing with the same subject matter. They are orders having application throughout the entire Railways in India. The different orders to be issued by Ministry of Railways, Govt. of India are being issued in similar manner. The Railway Board is the secretariat of Ministry of Railways and the Chairman Railway Board is the Ex-officio Principal Secretary of the Govt. of India. Similarly the heads of different departments in the Railway Ministry in the secretariat, viz., Railway Bord are called members, Directors and respective Directorates of the Departments concerned. All the decisions and orders of central Government pertaining to Railways, is being issued under the Ministry of Railways, by the designated Departmental Authority in the Railway Secretariat viz., Railway Board. Being so it is not correct and proper to treat Ext. P11 order as an order issued by the 13th respondent the Joint Director, Traffic, Commercial (Rates) as pictured by the petitioners. It is an order of the Ministry of Railways, Govt. of India bearing signature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. 15. Learned counsel for the Railway has referred to Government of India (Allocation of Business) Rules, 1961. Rule 2 of the Business Rules provides as follows: Allocation of Business-The business of the Government of India shall be transacted in the Ministries, Secretariats and Offices specified in the First Schedule to these rules (all which are hereinafter read to as departments ) Ministry of Railway (Rail Mantralaya) has been denoted as the Railway Board (Rail Board) 16. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch interpretation which makes provisions of an Act unworkable and defeat the objects of the enactment. To accept the submission of learned counsel for the petitioners that since no fresh notification has been issued under Act, 1905 after enactment of Act, 1989 investing powers under Act, 1890 to the Railway Bord, the Railway Board is denuded to exercise the powers of Central Government is to defeat the very working of Act, 1989. Learned counsel for the Railways have relied on a decision of the Division Bench of the Allahabad High Court in W.P. No. 11168/2011 in N.P.K. Trade Links Ltd. v. Railway Board and others which was decided on 06.05.2013 in which one of us (Justice Ashok Bhushan, J.) was also a party. In support of his submission that the same rate Circular No. 74 of 2004 was challenged by the petitioners in the said Writ Petition which Circular as upheld upholding the power of the Railway Board to issue the said Circular. Learned counsel for the petitioners submitted that in the said case learned counsel for the petitioners had conceded the jurisdiction of the Railway Board to issue the rate Circular hence the said issue was not gone into by the Division Bench in detail thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative function with that of administrative acts, had made the following observations: B-010: A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases: an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice. Legal consequences flow from this distinction. 23. Section 30 of Act, 1989 clearly delegates legislative power to Central Government to fix rate. Sub-delegation implies further delegation of the same power, which was originally delegated by the legislature. The governing principle is that legislative powers must be exercised by the delegatee himself and by none else. A delegatee cannot further delegate his power unless the parent law permits it to do so. In the above context, the doctrine delegatus non potest delegare , that is, a delegatee cannot further delegate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... problem or the controversy arises when there is a sub-delegation. It is said that when Parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had intended that its delegate should be free to empower another person or body to act in its place. In Barium Chemicals Ltd. v. Company Law Board, this Court said in respect of sub-delegation: Bearing in mind that the maxim delegatus non potest delegare sets out what is merely a rule of construction, sub-delegation can be sustained if permitted by express provision or by necessary implication. 7. Again in Mangulal Chunilal v. Manilal Maganlal, while considering the scope of Section 481(1)(a) of the Bombay Provincial Municipal Corporation Act (59 of 1949) this Court said that Commissioner of the Ahmedabad Municipal Corporation had delegated his power and function under the aforesaid section to a Municipal Officer to launch proceedings against a person charged with offences under the Act or the rules and that officer to whom such functions were delegated could not further delegate the same to another. 8. In Halsbury's Laws of England, 4th Edn., Vol. I, in respect of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power could be delegated or sub-delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. In the aforesaid case, the sub-delegation was upheld because Section 4 itself enumerated the classes of persons to whom the power could be delegated or sub-delegated by the Central Government. 27. From the proposition of law as laid down by the Apex Court, it is clear that delegatee of legislative function has to exercise that power himself and he cannot further sub-delegate that power unless there is any indication in the statute permitting sub-delegation. 28. The question to be answered in the present case is as to whether the Central Government has further delegated its power to fix rates as delegated to it by legislature under Section 30 of the Act, 1989 to CCM, COM and DRM, answer of which shall depend on the rate circular dated 19.12.2005, Exhibit P1. As noted above, Section 30 of the Act, 1989 empowers the Central Government to fix rates for different classes of goods and specify in such order the conditions subject to which such rates shall apply. The rate circular indicates that the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to specify the conditions subject to which rates shall apply. We are thus not persuaded to accept the submission of learned counsel for the appellant that paragraph 3.3 is sub-delegation of legislative power by the Central Government of fixing rates. 31. In this context, reference is made to Division Bench judgment reported in Electric Inspector v. R.J. Singh (AIR 1966 ALL. 326). In the above case the Court was considering Rule 48 of the Electricity Rules (1937) framed under the Electricity Act, 1910. Rule 48(1) has been quoted in paragraph 2 of the judgment, which was to the following effect: ....Rule 48(1) reads as follows: 'No electrical installation work...... shall be carried out upon the premises of or on behalf of any consumer or owner for the purposes of the supply of energy to such consumer or owner, except by an electrical contractor licensed by the State Government in this behalf'. 32. Rule 48(2) of the Electricity Rules (1937) provides that Rule 48(1) would come into force in respect of any State on such day as the State Government may by notification in the official Gazette appoint. There was no rule empowering the State Government to make rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. In the case of Harshankar Bagla, AIR 1954 SC 465 (supra) also no express power was conferred upon the Central Government to make rules regarding licences under the Cotton Textiles Order; still the Central Government made rules and the Supreme Court applied them. It was not even argued before the Supreme Court that the Central Government could not make them because the power to make them was not conferred upon it by the Order. A statutory provision empowering the Federal Communications Commission to conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice has been interpreted by the Supreme Court of America as explicitly and by implication delegating to the Commission power to resolve subordinate questions of procedure and as not merely conferring power to promulgate rules generally applicable to all proceedings before the Commission but also delegating broad discretion to prescribed rules for specific investigations; see Federal Communications Commission v. Schreiber. 14 Law E (2d) 383. We are, therefore, of the opinion that the notification issued by the State Government is not rendered invalid by the mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is nothing but progressively increasing rate subject to a maximum of six times of the prevalent rate. Merely because the said rates have been termed as penal rates, they cannot be held to go beyond the scope of Section 30(2) of the Act, 1989, whereas the scale of rates can be prescribed by Railway Board under Section 30(2) of the Act, 1989, the said scale may also contain a rate which can be termed as penal rates. The object and purpose of prescribing progressively increasing rate is to release the rolling stock within the stipulated time to save economic loss to the railways. Prescribing progressively increasing rates act as a deterrent to the consignee to immediately unload their goods from their rolling stocks or to remove their goods from wharfage. The immediate removal of the goods from rolling stocks and wharfage becomes more necessary and imminent when the terminal is congested. The prescription of such rates which is deterrent is with the object and purpose which cannot be said to be unreasonable or violative of any constitutional provisions. The Apex Court in AIR 1975, SC 1935, The Trustees of the Port of Madras Vs. M/s. Aminchand Pyarelal Ors. had occasion to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle, the scale of rares cannot be characterised as unreasonable. The objects and purpose for fixing rates for demurrage charges as laid down by the Apex Court in the above said case is regarding sea port which is also clearly applicable in the context of Railway Station where also there is necessity of removal of goods with utmost expedition. Section 30(2) of the Act, 1989 uses the phrase fix the rates of any other charges incidental to or connected with such carriage including demurrage and wharfage........ Thus, in addition to fixing rates for demurrage and wharfage, Central Government is fully empowered to fix the rates of any other charges incidental to or connected with . The penal rates connected with demurrage charges thus can be statutorily fixed. Thus the mere fact that the progressively increasing demurrage charges to the maximum of six times are also referred to as penal charges does not make the charge beyond the authority of Section 30 of the Act, 1989 unreasonable or violative of Article 14 of the Constitution of India. Our above view finds full support from the judgment of the Apex Court in (1998) 5 SCC 126, Jagjit Cotton Textile Mills Vs. Chief Commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, necessary that subordinate legislation, in order to take effect must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed and Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication it will take effect only when it is published through the customarily recognised official channel namely the official gazette or some other reasonable moe of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. 36. Similar proposition has been laid down in subsequent judgment reported in I.T.C. Bhadracha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... times and six times of normal demurrage rates were levied. We are, thus, not satisfied that on the above submissions, rate circular can be set aside. 39. Issue No. 7 relates to the restriction on the writ petitioners to employ only registered headload workers under the Kerala Headload Workers Act. It is submitted that since there is restriction on the appellant to engage its own workers for the purpose of loading and unloading and loading and unloading are entirely dependent on registered headload workers, then imposition of demurrage charges is unjustifiable. The submission is that registered headload workers do not work from 6 a.m. to 10 p.m., rather they work only from 8.30 a.m. to 5.30 p.m. The learned Single Judge has considered the said submission and has rightly observed that unloading of the consignment is duty of consignee. It is the consignee, who has to arrange necessary workers for carrying out loading and unloading operation. 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. Citing particular circumstances and difficulties the writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority as specified in Exhibit P11. It was held that Exhibits P4 to P10 were consequential proceedings passed pursuant to the orders passed by DRM. 43. Having gone through the judgment of the learned Single Judge which was delivered after perusal of the original records, we do not find any good ground to have any different view with regard to above submission. 44. In the Writ Petitions, which was filed by the writ petitioners, an interim order was passed. In these Writ Appeals also an interim order was passed subject to condition of deposit of 50% of the amount demanded. 45. In view of the foregoing discussion, we confirm the judgment of the learned Single Judge. While confirming the judgment of the learned Single Judge dated 31.03.2014, we dispose of these Writ Appeals in the following manner: (1) 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. (2) Station Master/Goods Supervisor shall forward the application for waiver of demurrage charges to the Divisional Officer with his remark within 15 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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