Full Judgment Text
$~R-209
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: October 17, 2016
+ FAO 200/2010 & C.M.13646/2016
S.S.A INTERNATIONAL LTD ..... Appellant
Through: Mr. N.M. Popli, Mr. Anuj Saxena
and Mr. Yogesh Bhardwaj,
Advocates
Versus
UNION OF INDIA & ANR .....Respondents
Through: Mr.A.S. Dateer, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Appellant’s claim petition seeking refund of ` 78,05,260/- with
interest stands dismissed by Railway Claim Tribunal vide impugned
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order of 2 June, 2009 by holding that the under charges were correctly
imposed upon appellant. The factual matrix of this case is already noted
in the impugned order and needs no reproduction. It is the case of
appellant that consignment of Paddy Husk (hereinafter referred to as
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Bhoosa ) was sent from Bihar to Panipat on 24 February, 2007 whereas it
is the case of respondents that during the course of preventive check
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conducted by the Vigilance Department of respondents at Panipat on 27
February, 2007 the contents of the consignment in question was found to
FAO 200/2010 Page 1 of 5
be rice bran and not Bhoosa and accordingly, under charges were levied
upon appellant which were duly paid by him. In the claim petition, the
stand of appellant was that the under charges were levied without giving
any opportunity of hearing to appellant, which is against the principles of
natural justice. Learned Tribunal on the pleadings of the parties had
framed issues and the evidence was led by the parties and thereafter, vide
impugned order appellant’s claim petition has been dismissed.
The challenge to impugned order by learned counsel for appellant
is on the ground that principal issue No.3 has been decided by trial court
without dealing with the plea of appellant regarding imposition of penalty
without following the principles of natural justice. To submit so, attention
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of this Court is drawn to appellant’s communication of 2 March, 2007
(Annexure P-8) to show that the penalty amount was deposited under
protest and the said document is on trial court record as Ex. C-9 and this
document has not been considered by learned Tribunal and so, the
impugned order deserves to be set aside. Reliance is placed upon
Supreme Court’s decision in Ajit Kumar Nag v. General Manager (PJ),
Indian Oil Corpn. Ltd., Haldia and Others, (2005) 7 SCC 764 and Ashok
Kumar Sonkar v. Union of India and Others, (2007) 4 SCC 54 to assert
that no one can be condemned unheard and an opportunity of hearing
ought to be provided unless it is found to be a futile exercise or if no
prejudice is caused.
On the other hand, learned counsel for respondents supports
impugned order and submits that there is no infirmity in the order
FAO 200/2010 Page 2 of 5
impugned in this appeal and that appellant has relied upon documents at
Annexure P-11 to P-14, which show that the goods in question were rice
brain and so, under charges have been rightly levied. An application has
been filed by respondents’ counsel under Section 340 of Cr.P.C. for
launching criminal proceedings against the Directors of appellant-
company for filing a false claim before trial court and for filing
photocopy of documents at Annexures P-11 to P-14 with affidavit. In
rebuttal, learned counsel for appellant submits that the documents at
Annexures P-11 to P-14 do not pertain to the consignment in question and
were inadvertently filed and no case for invoking provisions of Section
340 of Cr.P.C. against appellant is made out.
Respondent in its evidence has got examined a formal witness, who
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has tendered a vigilance report of 25 April, 2007 and in the cross-
examination, he has pleaded ignorance about the vigilance report while
claiming to be a formal witness, who has just tendered the vigilance
report.
Upon hearing and on perusal of impugned order, evidence on
record and the decisions cited, I find that the principal plea of appellant of
violation of principles of natural justice, though raised, has not been dealt
with by learned Tribunal in the impugned order. It was incumbent upon
learned Tribunal to do so with reference to applicable rules and
regulations. The principal issue of justification to impose under charges
has been decided by learned Tribunal with no reference to the evidence
on record. Learned Tribunal has erroneously relied upon one
FAO 200/2010 Page 3 of 5
circumstance of appellant paying the under charges for getting the goods
released. Learned Tribunal has proceeded on the surmise of appellant
getting release of the consignment of ` 58 lacs odd by paying a penalty of
78 lacs odd and has concluded that no prudent person would do so.
`
During the course of hearing, it was pointed out by learned counsel
for appellant that if the consignment whether it be Bhoosa or anything
else is not got released, then heavy demurrage charges are imposed and to
avoid the demurrage charges, consignment was got released and that too
under protest and this basic plea has not been dealt with in the impugned
order.
A bare perusal of impugned order shows that appellant’s plea of
getting the consignment released on payment of penalty charges under
protest has not been dealt with by learned Tribunal in the impugned
order. This by itself renders the impugned order unsustainable and makes
out a case for remand and decision afresh on the basis of evidence already
led.
So far as the application under Section 340 of Cr.P.C. filed by
respondent is concerned, I find that the documents at Annexures P-11 to
P-14 are of a period post the consignment and are thus of no relevance. It
is quite possible that due to inadvertence these documents have been filed
by appellant. However, there is no justification to entertain respondent’s
application under Section 340 of Cr.P.C. and hence, the application under
Section 340 of Cr.P.C. is dismissed.
FAO 200/2010 Page 4 of 5
In the light of the aforesaid, impugned order is set aside and the
matter is remanded back to the trial court for decision afresh in light of
evidence already on record.
Since it is an old matter, therefore, learned Tribunal shall make all
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endeavours to decide it afresh within a period of four months from 2
November, 2016, the date when the parties through their counsel shall
appear before the learned Tribunal for hearing.
Trial court record be remitted back forthwith.
With aforesaid directions, this appeal and the application are
disposed of.
(SUNIL GAUR)
JUDGE
OCTOBER 17, 2016
s
FAO 200/2010 Page 5 of 5