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2014 DIGILAW 230 (GAU)

UNION OF INDIA v. MAHESH ENTERPRISES(P) LTD

2014-02-25

A.M.SAPRE

body2014
JUDGMENT Heard Mr. Bimal Sarmah, learned Standing Counsel, Railways and Mr. A. Goyal, learned counsel appearing for the respondent. This is an appeal filed by the Union of India (General Manager, North East Frontier Railways) under Section 23 of the Railways Claims Tribunal Act, 1987 (for short hereinafter called ‘the Act’) against the judgments dated 1.2.2013 and 28.6.2013 passed by the Railways Claims Tribunal, Guwahati in Claim Application No.09/2010 (Old) and O.A.III.GHY/2010/0009. Facts of the case lies in a narrow compass. However, they needs to be mentioned in brief to appreciate the controversy involved in this appeal. The respondent herein (claimant) filed a claim application being Claim Application No.OA.III.GHY/2010/0009 (Old No.09/10) before the Railway Claims Tribunal against the appellant (Railways) claiming money decree for Rs.93,12,581/- towards non-payment of long term freight incentives, refund on account of long term special incentive scheme, wrong calculation of distance and refund of freight collected on account of terminal charges. The claim was denied by the Railways by filing written statement on several grounds. Parties adduced the evidence. It is this claim application which was heard by the Division Bench of the Tribunal which consisted of Shri Thomas Pallickaparampil, Member (Judicial) and Shri T.C. Nagley, Member (Technical). By order dated 1.2.2013, the Division Bench came to a conclusion that the claim of the respondent to the extent of Rs.80,97,161/- deserves to be allowed with interest at the rate of 7 per cent from the date of filing of the claim application and then at the rate of 9 per cent till payment is made along with proportionate costs of Rs.49,100/-. However, since the Members deferred on certain issues and, hence, no final order could be passed disposing of the claim application. As a result of the difference of opinion between the Members, the matter was placed before the Chairman, as required under Section 21 of the Act for referring to third Member. The Chairman referred the matter to third member - Shri Kamal Nayan Shrimal, Member (Judicial) for resolving the conflict between the two Members. The third Member Shri Kamal Nayan Shrimal, heard the argument and by order dated 28.6.2013 rendered his opinion. It is against these two orders i.e. the order dated 1.2.2013 passed by Division Bench and the order of third member dated 28.6.2013, the Union of India (Railway) felt aggrieved and filed this appeal under Section 23 of the Act. The third Member Shri Kamal Nayan Shrimal, heard the argument and by order dated 28.6.2013 rendered his opinion. It is against these two orders i.e. the order dated 1.2.2013 passed by Division Bench and the order of third member dated 28.6.2013, the Union of India (Railway) felt aggrieved and filed this appeal under Section 23 of the Act. Notice of this appeal was served upon the respondents. They are served and duly represented by Shri A. Goyal, learned counsel. Having heard learned counsel for the parties and on perusal of the records of the case, I am inclined to remand the case to the Tribunal for passing appropriate final order in the light of the opinion expressed by the third Member on 28.6.2013. In my considered opinion after the opinion was rendered by the Third Member on 28.6.2013, the matter should have been placed before the Division Bench for passing a final order on the main claim application in conformity with the opinion expressed by the Third Member. In other words, depending on the majority view of two members out of three members, a final order was required to be passed by the Division Bench for disposal of the claim petition. In fact, once the third member expressed his opinion on the conflict holding that he has agreed with the member, the Division Bench has to apply their mind by reading the opinion expressed by the Third Member and then pass a final order on the claim application. Since the Third Member expressed his view, the Division Bench got jurisdiction to pass a final order in conformity with the opinion of the Third Member. Such order when passed becomes a final order appealable by the aggrieved party under Section 23 of the Act. So long as final order is not passed by the Division Bench after receipt of opinion of the third Member, no party has a right to file an appeal because till then no legal order comes into existence for disposal of the claim petition. Since in this case, this exercise was not done because admittedly opinion of third Member was not placed before the Division Bench for their perusal and for passing the final order, the Railways should not have rushed to file the appeal under Section 23 against the so called orders. Since in this case, this exercise was not done because admittedly opinion of third Member was not placed before the Division Bench for their perusal and for passing the final order, the Railways should not have rushed to file the appeal under Section 23 against the so called orders. In the light of foregoing discussion, the appeal is disposed of with a direction to place the opinion of the Third Member dated 28.6.2013 before the Division Bench consisting of Shri Thomas Pallickaparampil, Member (Judicial) and Shri T.C. Nagley, Member (Technical) to enable the Division Bench to pass a final order keeping in view the opinion of the Third Member dated 28.6.2013. Once the final order is passed by the Division Bench, the aggrieved party shall have a right to file appeal against the final order under Section 23 of the Act. The parties are directed to appear before the Tribunal on 10th March, 2014 and produce a copy of this order to enable the Tribunal to pass a final order, as directed above. The original record of the case, if summoned, be sent back to the Tribunal so as to reach the Tribunal before 10th March, 2014. It is brought to my notice that out of the two members of Division Bench, one has retired. If that be so, the Chairman will constitute a fresh Division Bench, but the other member who is available would necessarily be a Member of newly constituted Division Bench for passing the final order. If for some valid reasons, both the Members are not available, then the Chairman will form another Division Bench for passing the final order in the claim application. It is with these observations and liberty, the appeal stands, accordingly disposed of. No cost.