Calcutta High Court (Appellete Side)
Rashmi Metalliks Limited & Anr vs Union Of India & Ors on 17 June, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Shampa Sarkar
W.P. No.23103 (W) of 2018
Rashmi Metalliks Limited & Anr.
Versus
Union of India & Ors.
For the petitioner : Mr. S.N. Mookherjee,
Mr. Amitesh Banerjee,
Mr. Rajesh Gupta,
Ms. Shivangi Thard
For the respondents : Mr. Partha Sarathi Bose,
Mr. Deepak Kumar Singh
Heard on : 15/03/2019 & 23/03/2019
Judgment on: 17/06/2019
Shampa Sarkar, J. :
The subject matter of challenge in this writ petition is an order dated November 15, 2017 passed by the Additional Member (Commercial), Railway Board, Ministry of Railways, by which the request of the petitioner No.1 as a customer under the Wagon Investment Scheme (hereinafter referred to as WIS) to carry the consignments of third parties was rejected.
2. The petitioner No.1 is a company incorporated under the 2 Companies Act, 1956. On June 15, 2009 the petitioner entered into an agreement with the Union of India for procurement of guaranteed supply of wagons, that is, 6 rakes per month in addition to normal supply of rakes as supplied in the previous financial year on terms and conditions incorporated in the said deed of agreement. The agreement was executed between the petitioner No.1 and the Union of India on the basis of WIS formulated by the Railway Board, Ministry of Railways, Government of India on March 30, 2005 and on September 26, 2006. On July 18, 2016 the petitioner submitted an application before the respondent no.7, Chief Commercial Manager (F. M.), South Eastern Railway requesting the said respondent to accord permission for movement of rakes under WIS by providing services to third parties. On October 19, 2016 the petitioner No.1 again submitted an application before the respondent no.5, Additional Member (Commercial), Railway Board, Ministry of Railways requesting the said respondent to grant permission for movement of rakes under WIS by providing services to third parties, where the petitioner No.1 was neither a consignor nor a consignee. On November 9, 2016 the respondent no.9, Deputy Chief Commercial Manager (F.M.), South Eastern Railway communicated to the petitioner the decision of the respondent No.5 refusing to grant permission to the petitioner No.1 for movement of rakes under WIS by providing services to the third party.
3. The petitioner No.1 by a letter dated January 2, 2017 made a detailed representation before the concerned railway authorities alleging that the rejection of the prayer of the petitioners to provide services to third parties under the WIS was contrary to the provisions of the 3 agreement and requested the concerned authority to furnish a copy of the order or decision of the Railway Board on the basis of which the order dated November 9, 2016 was passed. No such decision was supplied to the petitioner. Aggrieved by the order dated November 9, 2016, the petitioner filed a writ petition before this Court being W.P. No.5385 (W) of 2017. By an order dated April 20, 2017, a learned Single Judge of this Court quashed the order/letter dated November 9, 2016 with a direction upon the respondent No.2, that is, the Railway Board, Ministry of Railways, Government of India to consider the application dated October 19, 2016 filed by the petitioner No.1 before the Additional Member (Commercial) Railway Board, afresh, in accordance with law and in the light of the observations made by the said learned Judge in the said judgment and order, with regard to the matter of granting permission to the petitioners for providing services to third parties under the WIS and in terms of the deed of agreement dated June 15, 2009 within a period of six weeks from the date of communication of said order.
4. By an order dated June 14, 2017 the respondent No.5 rejected the petitioners' representation. Aggrieved by the said order, the petitioners preferred W.P. No.19415 (W) of 2017 before this Court. The said writ petition was disposed of by the said learned Single Judge by an order dated November 2, 2017. The learned Single Judge quashed and set aside the order dated June 14, 2017 passed by the respondent No.5 with a direction upon the Railway Authorities to consider the application submitted by the petitioner No.1 on October 19, 2016 afresh in the light of the judgment and order dated April 20, 2017. Pursuant to the 4 abovementioned direction passed in W.P. No.19415 (W) of 2017 the Director Freight Marketing, Government of West Bengal, Ministry of Railways forwarded an order dated November 15, 2017 passed by the Additional Member (Commercial) Railway Board, Ministry of Railways, rejecting the prayer of the petitioner No.1 for grant of permission to carry the consignments of third parties, inter alia, holding that only the petitioner No.1 was entitled to the benefits under the WIS as the investor and the said benefit of 10% rebate on freight charges could be availed of, only if the petitioner No.1 was the end user. It was further observed that the WIS agreement was between the petitioner No.1 and the Railway Board and as per the WIS policy, that is, the Railway Board Freight Marketing Circular No.40 of 2005, the petitioner No.1 was not entitled to carry consignments of third parties. Aggrieved by the order dated November 15, 2017 issued by the respondent No.5, this writ petition has been filed.
5. The petitioner relied on some decisions of the Orissa High Court, namely, Shyam Metalics & Energy Ltd. vs. Union of India & Ors., passed in W.P.(C) No.3066 of 2016 dated November 29, 2016, M/s. Sara International Ltd. vs. Union of India & Ors., passed in W.P.(C) No.28478 of 2013 dated December 20, 2016, Gimpex Private Limited vs. Union of India & Ors., passed in W.P.(C) No.22372 of 2016 dated December 22, 2016 and Bagadiya Brothers Private Limited vs. Union of India & Ors., passed in W.P.(C) No.2254 of 2017 dated January 18, 2018 in support of their contentions.
6. The petitioners submitted that in those decisions the High Court 5 at Orissa had repeatedly and conclusively held that the Circular dated September 17, 2013 on the basis of which the claim of the petitioner No.1 was rejected did not apply to WIS and there was no covenant in the agreement barring the investor from carrying consignments of third parties. By virtue of the said judgments of the Orissa High Court, the Railway Authorities had granted permission to similarly situated investors under the WIS to provide services to third parties.
7. The grounds of challenge in this writ petition were that once the Railway Authorities had accepted the judgments of the High Court at Orissa and allowed similarly situated investors like the petitioner No.1 to give services to third parties, the same benefit should be extended to the petitioners No.1, inasmuch, the railway authorities could not discriminate between WIS customers. It was also stated that one of those judgments of the Orissa High Court was appealed from before the Hon'ble Apex Court by the respondents and by order dated September 22, 2017 the Hon'ble Apex Court dismissed the special leave petition in the matter of Union of India & Ors. vs. Gimpex Private Limited. It was contended that the agreements entered into by the petitioner No.1 with the Railway Authorities did not prohibit use of rakes assured under the said scheme for transportation of third party consignments and the authorities wrongly relied on the policy/circular dated September 17, 2013. It was further contended that by an order dated April 20, 2017, the learned Single Judge while disposing of W.P. No.5385 (W) of 2017, filed by the petitioners had directed the Railway Authorities to consider the matter afresh in the light of the observations made in the said decision but, the authority did not 6 comply with the said order but passed the order impugned to this writ petition without considering the observations of the said learned Single Judge with regard to the non-applicability of the policy or circular dated September 17, 2013 and August 23, 2013 issued by the Railway Board with regard to interpretation of the term "assign". The petitioner emphasized that under the WIS issued by the Government of India, Ministry of Railway (Railway Board) there was no express prohibition against using the rakes for carriage of third party consignments. Referring to the agreement for WIS, it was argued that the expression 'investor' included within its meaning 'successors' and 'assigns' of the investor unless, it was repugnant to the context or meaning thereof.
8. It was submitted by Mr. S.N. Mookherjee, learned Senior Advocate appearing on behalf of the petitioner that the term 'assign' included within its ambit not only the investor, that is, the petitioner but any person claiming under the investors by way of transfer or assignment of the right of the investor in favour of any third party. Mr. Mookherjee pointed out Clauses 2.5 to 2.8 of the agreement in order to emphasize that the freight rebate of 10% on the normal tariff rate was to be given to the investor which included the successors or assigns of the investors. He further submitted that the said freight rebate mentioned under Clause 2.5 would be granted from the commencement date of the agreement and would remain in force for 10 years, after which the wagons procured under the said scheme could be transferred to the ownership of the Indian Railways.
9. Mr. Mookherjee further pointed out the obligations of the Indian 7 Railway with regard to guaranteed supply of wagons to the investor and in case of failure of the railways to meet such guaranteed supply in a particular month, the railway authorities were obligated to make good the shortfall in the following month. Finally Mr. Mookherjee argued that in case of termination of the agreement of the investor on account of liquidation, merger or due to any alteration or deletion, the ownership would remain with the investor. Mr. Mookherjee's contention was that if the investor was recognized as the owner of the wagons even in case of termination of the agreement then the investor had the right to carry consignments of third party and also allow the third party to use the rakes under WIS, there being no fetter in the agreement.
10. It was contented by Mr. Partha Sarathi Bose, learned Senior Advocate appearing on behalf of the respondents, that the reliefs claimed in the writ petition were barred by the principles of res judicata and constructive res judicata, inasmuch as, similar prayers which were not granted by the learned Single Judge of this Court in the orders dated April 20, 2017 and November 2, 2017 passed in W.P. No.5385 (W) 2017 and W.P. No.19415 (W) of 2017 respectively, could not be granted in this writ petition. He further submitted that the decisions of the Orissa High Court relied upon by the petitioner were restricted to the petitioners therein. He placed the relevant portions of the decisions in M/s. Sara International Ltd. (supra) and Gimpex Private Limited (supra).
11. On the point of constructive Res Judicata reliance was placed by Mr. Bose on the decisions of Union of India & Ors. vs. Southern Railway Employees Cooperative Stores Workmen Union & Ors., 8 reported in (1998) 5 SCC 530, T.P. Moideen Koya vs. Govt. of Kerala & Ors., reported in (2004) 8 SCC 106 and Kaushik Cooperative Building Society vs. N. Parvathamma & Ors., reported in (2017) 13 SCC 138 in support of his above submissions.
12. Now coming to the legality of the order dated November 15, 2017 passed by the Additional Member (Commercial) Railway Board, Ministry of Railways, which is impugned in this writ petition, a discussion on the grounds of rejection is necessary. The authority rejected the request of the petitioner No.1, on the ground that the same was not to be in consonance with the terms and conditions of the agreement and violative of the WIS Freight Marketing Circular No.40 of 2005 as also the WIS Policy dated September 17, 2013. It appears that while rejecting the request of the petitioner the authority relied on paragraphs 7.1 and 7.3 of the WIS Policy (Freight Marketing Circular No.40 of 2005) which stipulated that the investor/customer was supplied the guaranteed number of rakes per month and a freight rebate of 10% was granted for 10 years in respect of the investor alone and the benefit of 10% rate was also available only to the investor/end user. It was further stated in the order impugned that the rights and obligations contained in the agreement were applicable to the investor who had signed the agreement while entering into the WIS and when the agreement itself did not allow WIS customers to carry consignment of third parties, the question of granting such a permission to the petitioner No.1, was outside the ambit of the agreement and the existing policy of the Railway Board.
13. Admittedly, the application of the petitioner No.1 dated October 9 19, 2016 was first rejected by an order dated November 9, 2016 issued by the Deputy Chief Commercial Manager (FS) on the ground that the matter was referred to the Railway Board and the Board had already taken a stand disallowing movement of consignment of third parties under the WIS. The said order was challenged by the petitioners in W.P. No.5385 (W) of 2017. Upon elaborate discussion on the issues raised by both the parties, by a judgment and order dated April 20, 2017, a learned Single Judge of this Court disposed of the said writ petition upon quashing the order dated November 9, 2016 with a specific direction upon the Railway Board to consider the matter afresh in accordance with law, in the light of the observations made by the learned Single Judge in the said judgment and in terms of the deed of agreement dated June 15, 2009. Pursuant to the said directions, the Railway Board by an order dated June 14, 2017 rejected the prayer of the petitioner No.1 for providing services to third party under the WIS with the following observations:-
"6. In terms of Para 7.1 & 7.3 of WIS Policy (Railway Board's Freight Marketing Circular No.40 of 2005) guaranteed supply of rakes and freight rebate of 10% under WIS scheme will be granted to the WIS investor only.
7. Para 2.5 of WIS agreement reads as "The railway administration shall give freight rebate @ 10% on the normal tariff rate to the investor as may be notified by the Central Govt. from time to time." This benefit is admissible only to the investor.
8. The WIS agreement between the investors and the Railways is a bi-party agreement. The rights and obligations as contained in the agreement are applicable only to the investors who have signed the agreement. Therefore, benefit of WIS scheme under the agreement is admissible only to the investor i.e. M/s Rashmi Metaliks. It is not admissible to a third party.
9. It is further submitted that Railway Board's letter No2006/TC(FM)/4/25 pt-I dtd.17.09.2013 is just a clarification to the existing provision of WIS policy and agreement. In terms of Para 7.1 & 7.3 of WIS policy and Clause No.2.5 & 5.1 of WIS agreement Indent for 10 WIS rakes should be placed by WIS investor and Consignor should be the WIS investor himself.
10. Railway Board's letter No. 2006/TC(FM) /4/25 pt-I dtd.17.09.2013 has just elaborated the above conditions of WIS policy and agreement. Hence there is no change in WIS policy or agreement due to issuance of the letter. The letter dtd.17.09.2013 has been issued in consonance with WIS policy and WIS agreement.
11. Nowhere in WIS policy it is mentioned that a WIS policy it is mentioned that a WIS customer can carry consignment of 3rd party (3rd party being the Consignor).
12. As explained Para 7 above, Railway Board's letter No. 2006/TC(FM) /4/25 pt-I dtd.17.09.2013 is clarificatory in nature and in consonance with WIS policy and agreement. Hence, issuance of letter dtd.17.09.2013 is in no way contradictory to WIS policy. As per the WIS policy only end users have been allowed to make investments. Railway Board's Lr. Dated 17.09.2013 prohibiting the movement of 3rd party consignments in WIS rake is in sync with the policy. Therefore the party was correctly denied the opportunity of leasing stock to the third party."
14. The said order was challenged in W.P. No.19415 (W) 2017 by the petitioners and upon contested hearing the order dated June 14, 2017 was set aside with the following observations:-
"On perusal of the impugned order under challenge in the writ application, I find that the respondent no.5 has blatantly violated the direction given by this Court in W.P. no.5385(W) of 2017. This is a fit case where contempt rule should have been issued against the respondent no.5 for wilful violation of the direction given by this Court. However, I restrain myself from issuing contempt rule in the absence of any specific prayer in this regard by the petitioner. It is relevant to point out that the Respondent/Railway Board, Ministry of Railways, Government of India was directed to consider the application submitted by the petitioner on October 19, 2016 before the Additional Member, (Commercial), Railway Board afresh in accordance with the law and in the light of the 3 observations made in the judgment for granting permission to the petitioner for providing services to the third party under Wagon Investment Scheme dated June 15, 2009 within a period of six weeks from the date of communication of the order. Since the respondent no.5 has passed the impugned order in violation of the observations made in the judgment dated April 20, 2017 passed in connection with W.P. no.5385(W) of 2017, the said impugned order (Annexure P/17 to the writ application) is hereby quashed. The respondent no.5 is directed to consider the applications submitted by the petitioner on October 19, 2016 afresh in the light of the observations made by the Court in the judgment dated April 20, 2017 in connection with W.P. no.5385(W) of 2017 within a period of three weeks from the date of communication of the order.11
With the above direction, the writ application stands disposed of."
15. It is clear that the learned Single Judge was of the opinion that the Railway Authority had issued the order impugned dated June 14, 2017 in violation of the judgment and order dated April 20, 2017, passed in connection with W.P. No.5385 (W) 2017. The Railway Board was once again directed to consider the application of the petitioner dated October 19, 2016 afresh in the light of the observations made by the said learned Judge in the judgment and order dated April 20, 2017 in W.P. No.5385 (W) of 2017. The relevant portion of the observations of the learned Single Judge in W.P. No.5385 (W) of 2017 is quoted below:-
"6. On consideration of the terms incorporated in the deed of agreement dated June 15, 2009 I do not find any express prohibition of providing services to the third party by the petitioner under Wagon Investment Scheme. The circular of the Railway Board dated August 23, 2013 is the verbatim re-production of the previous circular of the Railway Board dated September 17, 2013. This circular of the Railway Board dated September 17, 2013 was challenged before the Orissa High Court in the case of "M/s. Sara International Ltd. V. Union of India and Ors" (supra) wherein the Division Bench of the Orissa High Court has held in paragraph 9 that the said circular has given general interpretation of the word "assign" with regard to the scheme. It is further held by the Orissa High Court in paragraph 10 of the judgement that the said circular is issued by the Railway Board on the basis of legal opinion of the legal advisor who lost sight of the word "assign" as used in the deed of agreement which is only in the context where one of the parties does not survive and the said interpretation of the word "assign" cannot have any application where all the parties are 7 surviving. It is held in paragraph 11 of the judgement that the said circular cannot have any manner of application for interpreting either Wagon Investment Scheme or the terms of the agreement between the parties. The said circular of the Railway Board dated September 17, 2013 was quashed by the Division Bench of the Orissa High Court so far as the said circular relates to the case of the petitioner of the said writ petition. On perusal of the said circular dated September 17, 2013 and the circular of the Railway Board dated August 22, 2013, I am of the view that both the circulars were issued on the basis of legal opinion of the legal advisor who really lost sight of the word "assign" as used in the deed of agreement dated June 15, 2009 where both the parties are surviving. The circular of the Railway Board indicates that the 12 assignment of rakes under Wagon Investment Scheme to third party is against the policy of the Railway Board and the same will create complication in supply of guaranteed rakes as well as freight rebate. The petitioner sought for permission from the Railway Authority for providing services to the third party for using the rakes without violating the terms incorporated in the deed of agreement dated June 15, 2009. The benefit and 8 obligation, if any, created in favour of the third party by the petitioner will be within the ambit of the said deed of agreement dated June 15, 2009 which is based on the Wagon Investment Scheme formulated by the Railway Board. Accordingly, in my view the Railway Board circular dated September 17, 2013 and the subsequent circular of the Railway Board dated August 23, 2013 cannot have any manner of application in the facts of the present case. I do not find any merit in the submission made on behalf of the respondents that the Railway Board circular dated September 17, 2013 and the Railway Board circular dated August 23, 2013 are binding on the petitioner, as the same have not been challenged in the present writ petition.
7. . . . . . . .
8. . . . . . . .
9. By applying the test laid down by the Supreme Court in "Shyam Singh V. Daryao Singh" (supra), the Division Bench of our High Court in "Ram Baran Prosad V. Ram Mohit Hazra" (supra) and the Division of Orissa 10 High Court in "M/s. Sara International Ltd. V. Union of India and Ors" (supra) I would like to hold that there is no prohibition of assignment of the right of the petitioner in providing services to the third party under Wagon Investment Scheme without violating the terms and conditions incorporated in the deed of agreement dated June 15, 2009.
10. In "Sasan Power Limited. V. North American Coal Corporation (India) Private Limited" (supra) the Supreme Court dealt with the case where the American Company agreed to provide certain consultancy and other onsight services for a mine to be operated by the appellant in India. It is held by the Supreme Court in paragraph 19 of the judgement that an assignment is understood to be the transfer from one person to another the whole or part of an existing right or interest in intangible property presently owned by the assignor. The right or interest itself is not extinguished. The question of assignment of the contract does not arise in the case at hand. What is sought to be done by the petitioner is to provide services to the third party without violating the terms and conditions incorporated in the deed of agreement dated June 15, 2009.
The benefits and obligations of the parties 11 to the deed of agreement dated June 15, 2009 will remain intact and thereby the Respondent Railway authorities will not be prejudiced by way of losing revenue. So the facts of "Sasan Power Limited. V. North American Coal Corporation (India) Private Limited" (supra) are clearly distinguishable from the facts of the present case and the ratio of the said report cannot be made applicable in the facts of the present case.
11. . . . . . . .
13
12. In view of the observations made hereinabove, I am constrained to hold that the refusal to grant permission to the petitioner for providing services to the third parties under Wagon Investment Scheme is not justified under the law. Accordingly, the letter dated November 9, 2016 issued by the respondent no.8, Deputy Chief Commercial Manager (F. M.) (Annexure 'P-12' to the writ application) is quashed. The natural corollary is that the respondent no.2 Railway Board, Ministry of Railways, Government of India is directed to consider the application submitted by the petitioner on October 19, 2016 before the Additional Member (Commercial), Railway Board (Annexure 'P-11' to the writ application) afresh in accordance with law and in the light of the observations made by me in this judgement for granting permission to the petitioner for providing services to the third party under Wagon Investment Scheme within the ambit of terms of deed of agreement dated June 15, 2009 within a period of six weeks from the date of communication of the order."
16. Having considered the order impugned in this writ petition, I do not have any hesitation to hold that the Additional Member (Commercial) Railway Board while passing the order impugned failed to appreciate the true meaning, purport and legal implications of the observations of the learned Single Judge in the order dated April 20, 2017. The relevant portion of the order impugned in this writ petition is quoted below:-
"6. After going through above, it is submitted that petitioner's request is not in consonance with the agreement and is violative of the policy. The grounds for non-agreement of the request are as under:
a. In terms of para 7.1 & 7.3 of WIS Policy (Railway Board's Freight Marketing Circular No.40 of 2005) guaranteed supply of rakes and freight rebate of 10% under WIS scheme will be granted to the WIS investor only.
b. Para 2.5 of WIS agreement reads as "The railway administration shall give freight rebate @ 10% on the normal tariff rate to the investor as may be notified by the Central Govt. from time to time." This benefit is admissible only to the investor.
c. The WIS agreement between the investors and the Railways is a bi-party agreement. The rights and obligations as contained in the agreement are applicable only to the investors who have signed the agreement. Therefore, benefit of WIS scheme under the agreement is admissible only to the investor i.e. M/s Rashmi Metaliks. It is not admissible to a third party.
9. It is further submitted that Railway Board's letter 14 No.2006/TC(FM)/4/25 pt-I dtd. 17.09.2013 has been set aside by the Hon'ble High Court and the Hon'ble High Court has directed the Railway administration to act as per agreement. However, neither the agreement nor the WIS policy grants any right to the WIS customer for carrying the consignment of 3rd party (3rd party being the Consignor) and as elaborated in the foregoing paras 6 a to c, the benefits under the scheme will accrue to the investor only. Further as per the WIS policy only end users has been allowed to make investments.
10. Keeping in mind the decision of Hon'ble High Courts of Calcutta and Orissa, WIS policy provisions and the agreement signed between the M/s Rashmi Metaliks Ltd and Indian Railways, the undersigned is not at liberty to issue any direction contrary to the stand of Railway administration that the rakes under WIS cannot be used by third party (3rd party being the Consignor) and as such request of M/s Rashmi Metaliks cannot be acceded to."
17. A comparative analysis of the orders dated November 15, 2017 and June 14, 2017, it appears that both the orders have been passed rejecting the prayer of the petitioner on similar grounds and the order dated November 15, 2017 was a reiteration of the order dated June 14, 2017 which was quashed and set aside by the learned Single Judge in W.P. No.19415 (W) of 2017, inter alia, on the ground that the same was violative of the judgment and order dated April 20, 2017, with a further direction upon the respondent Railway Board to consider the application of the petitioner No.1 for grant of permission to carry third party consignments in accordance with law, afresh, and on the basis of the observations made by the learned Single Judge in W.P. No.5385 (W) of 2017. The observations of the learned Single Judge in the judgment and order dated April 20, 2017 was that the Circular dated September 17, 2013 did not have any manner of application in the case of the petitioner No.1 and was not binding on the petitioner No.1 had not been dealt with being the authority. The learned Single Judge had also come to a finding that in this case there was no assignment of contract to any third party 15 and the petitioner No.1 had only sought for permission to provide services to third parties, without violating the terms and conditions incorporated in the deed of agreement dated June 15, 2009. His Lordship had observed that the benefits and obligations of the parties under the said deed would remain intact and the Railway Authorities would not suffer any prejudice by way of loss of revenue. In the said judgment, it was categorically held that refusal to grant permission to the petitioner No.1 for providing services to third parties under the WIS was not justified under the law as there was no such bar in the agreement. While coming to the aforementioned findings, the learned Single Judge agreed with the finding of the Orissa High Court dated December 20, 2016 passed in the case of M/s. Sara International Ltd. (supra) with regard to the non-applicability of the Circular dated September 17, 2013 which was quashed by the Hon'ble Orissa High Court.
18. The authority while passing the order impugned to this writ petition also did not consider the contention of the petitioners to the effect that similarly situated investors, namely, M/s. Sara International Ltd. (supra), and Gimpex Private Limited and Others were granted the same benefit pursuant to the judgments of the Orissa High Court by which the circular dated September 17, 2013 was quashed. The Union of India preferred a special leave petition before the Hon'ble Apex Court and the Hon'ble Apex Court dismissed the special leave petition. Thus, the decision of the Hon'ble Division Bench of the Orissa High Court in Gimpex Private Limited (supra) had attained finality and was binding on the railway authorities. The railway authorities had also accepted the 16 judgment of the Orissa High Court and complied with the same. In this proceeding the petitioner has filed a supplementary affidavit annexing documents to show that the Railway Authorities had issued indents under the WIS to M/s. Sara International Ltd. (supra) for carrying consignments of third parties.
19. These facts are not disputed by the learned Senior Advocate for the respondent although, he contended that the orders of the Orissa High Court was restricted to M/s. Sara International Ltd. (supra) only. Thus, I find from the order impugned that not only had the respondent No.5 reproduced the earlier order dated June 14, 2017 with minor alteration in the language but, had also failed to consider the legal issues which had been settled by the learned Single Judge of this Court by judgment and order dated April 20, 2017. The learned Single Judge had already held that the refusal to grant permission to the petitioner No.1 to carry the consignments of the third parties was not permitted under the law as the interpretation of the word 'assign' in the circular dated September 17, 2013 was restrictive in nature and the terms and conditions of the agreement dated June 15, 2009 did not put any restriction or prohibition on the right of the investor to carry third party consignments. The learned Single Judge had also observed that the railway authorities and the investor were bound by the terms and conditions of the said agreement and if services were given to third parties the same would not violate the agreement, as the investor would naturally comply with the obligation cast upon him under the agreement. The order dated April 20, 2017 was not challenged by the authorities in any appeal and the observations made 17 therein have become binding. Further, the railway authorities on the basis of the judgment and order dated November 2, 2017 passed in W.P. No.19415 (W) of 2017, was bound to pass an order in terms of the decisions and observations of the learned Single Judge in the judgment and order dated April 20, 2017, passed by the W.P. No.5385 (w) of 2017.
20. I am of the opinion that the order dated November 15, 2017 is perverse and liable to the set aside and quashed. The reasons and grounds assigned by the authority in the said order rejecting the request of the petitioner No.1 to carry third party consignment are similar to those mentioned in the order dated June 14, 2017 passed by the same authority. The order dated June 14, 2017 was set aside by this Court with certain observations that the said order was contemptuous and passed in willful and deliberate violation of the order dated April 20, 2017. As such, the reasons assigned in the order impugned that Clauses 2.5, 7.1 and 7.3 of the WIS policy operated as a bar to grant of such permission is not acceptable in law. The respondent authority again had committed the same error by not passing a reasoned order in terms of the judgment and order dated April 20, 2017 passed in W.P. No.5385 (w) of 2017. The observations made by the learned Single Judge in the order dated April 20, 2017 with regard to the non-applicability of the circular dated September 17, 2013 and also with regard to the non-existence of a prohibitory clause in the deed of agreement dated June 15, 2009 as regards the right of the investor to give services to third parties had attained finality and the railway authorities were bound by these observations. It also cannot be lost sight of that similar permissions for 18 rendering services to third parties have been given to other investors under the WIS pursuant to the decisions of the Orissa High Court. The respondent authority had not denied the fact but, have only stated that the decisions were binding upon the Railway vis-à-vis those investors and not the petitioners.
21. In my opinion, such a plea is not available to the Union of India and also the railway authorities who are state under Article 12 of the Constitution of India and the said authorities cannot act arbitrarily, discriminatorily and in violation of Article 14 of the Constitution of India by following different set of policies for investors belonging to different parts of the country although, they were availing of the same WIS facility under a common scheme applicable all over India.
22. In the decision of Gimpex Private Limited (supra) the Hon'ble Division Bench of the Orissa High Court held as follows:-
"10. Learned Counsel for the parties do not dispute the fact that the word 'assign' is nowhere used in the Scheme. The Circular has been issued on the basis of some legal opinion which may have been sought from the Legal Advisor of the opposite party. We are of the view that, while giving such legal opinion, the Legal Advisor has lost sight of the word 'assign' as used in the agreement, which is only in the context where one of the parties does not survive and not in a case where all the parties are surviving. As such, the Circular has been issued under wrong impression of interpreting the word 'assign' as used in the Scheme without noticing that such word has not been considered or used in the Scheme.
11. In view of the aforesaid, the Circular issued on 19.9.2013, which is impugned in this writ petition, does not relate to the agreement or the Scheme in question and has to be ignored while interpreting the Scheme or the agreement between the petitioner and the opposite parties while considering the question of use of wagons by the petitioner as per the agreement between the parties.
12. It may also be stated that in the present case, though the Arbitration clause is provided for in the Scheme as well as the agreement, but as there is no question of dispute or difference 19 between the parties relating to any matter arising out of the agreement, further that we are of the opinion that the Circular itself does not apply to the present case, we would not be inclined to relegated the parties to the Arbitrator under the aforesaid clause.
13. In view of the aforesaid, we allow the writ petition to the extent that the Circular dated 17.9.2013 is quashed in so far as it relates to the case of the petitioner, and the petitioner shall be permitted to carry on the business in terms of the agreement, ignoring the direction issued in the aforesaid Circular dated 17.9.2013."
23. A similar view was taken by the Hon'ble Division Bench of the Orissa High Court in the case of M/s. Sara International Ltd. (supra). Judicial comity, discipline and propriety warrant that the decisions on point of the Orissa High Court should be followed by this Court unless of course, there were valid reasons to differ with the view taken by the Orissa High Court. I have gone through the above judgments of the Orissa High Court and completely agree with the reasoning and the conclusion thereof. Further, learned Single Judge while passing the judgment and order dated April 20, 2017 in W.P. No.5385 (w) of 2017, also principally agreed with the Hon'ble Division Bench of the Orissa High Court with regard to the grounds on which the Circular dated September 17, 2013, had been quashed by the Orissa High Court in some writ petitions qua the petitioners therein. It must be borne in mind that the said judgments and orders have been accepted by the authorities and have been acted upon by them. On a careful examination of the orders, I arrive at a conclusion that the decision of the Orissa High Court ought to be followed in this case as well and the petitioner No.1 cannot be deprived of similar benefits available to their similarly situated counterparts in respect of whom permissions have been granted by the railway authority pursuant the direction of the Orissa High Court. The principle of stare decisis should 20 be invoked in public interest, and in order to keep the scale of justice steady and not variable with every new Judge's opinion.
24. The Hon'ble Supreme Court had observed in Neon Laboratories Ltd. v. Medical Technologies Ltd, reported in (2016) 2 SCC 672 that every High Court must give due deference to the enunciation of law made by another High Court even though it was free to charter a divergent direction. A similar view was taken in the decision of Nirendra Kumar Saha v. Steel Authority of India Ltd reported in 2009 SCC OnLine Cal 619, where it was held that the doctrine of Comity of Courts demanded that Courts should adopt a consistent and uniform approach towards administration of justice by taking adequate care to ensure elimination of conflicting orders. In the said case, the issues raised had been substantially answered by three other High Courts and the learned Judge did not find any reason to differ with them. Most pertinent however is the Division Bench decision of the Calcutta High Court in the matter of Chief Security Commissioner v. Ranadhir Kr. Pandey, reported in 1998 SCC OnLine Cal 450. In that case, the Hon'ble Division Bench of the Calcutta High Court was faced with a situation where the Hon'ble Allahabad High Court had quashed the decision of the Railway Authorities to cancel an advertisement for application to the post of "Rakshak". The Hon'ble Calcutta High Court made the following observation-
"9. So far as the second contention raised by Mr. Pal is concerned, we also find sufficient force therein. It is now well settled principle of law that if a benefit is given in terms of a judgment persons similarly situated must be given the same benefit. This aspect of the matter has been considered by the Apex Court in Virendra Kumar v. Union of India reported in (1981) 3 21 SCC 30 : A.I.R. 1981 S.C. 1775. The same principle has been reiterated by the Apex Court in more than one case. Suffice it to refer A.I.R. 1988 S.C. 668 at 694: (1993) 2 SCC 375 at 376 and 1980 (4) S.C. 13. We find it difficult to accept the submission of Mr. Das to the effect that the petitioners are not persons similarly situated upon whom the benefit of the judgment of the Allahabad High Court could be extended inasmuch as all the candidates irrespective of their places of residence have applied for pursuant to the aforementioned advertisement dated 7.4.95 and had undertaken test and interviews. If the notice dated 21st October, 1996 cancelling the advertisement dated 7.4.95 as also the advertisement dated 26th October, 1996 are ultra vires the Constitution of India and/or are otherwise illegal, their position becomes same to those who were the writ- petitioners before the Hon'ble Allahabad High Court inasmuch as it became obligatory on the part of the respondents to consider their candidature also pursuant to the advertisement dated 7.4.95 and declare their results of the selection held pursuant to the earlier advertisement. Furthermore, after recommendations have been made by the Railway Board, the Chief Security Commissioner, who is the authority subordinate to the Railway Board, must give effect thereto in its letter and spirit. In other words, if the Railway Board has directed implementation of the aforementioned judgment of the Hon'ble Allahabad High Court to the Chief Security Commissioner, R.P.F. Eastern Railway, Calcutta, benefit of the said Judgment must be extended by the said authority to all persons who are a similarly situated. Reference in this connection may be made to (1973) 1 SCC 651: A.I.R. 1973 S.C. 1088: A.I.R. 1974 SC 251 and 1987 Supp SCC
18. It is true that the judgment of a learned Single Judge of Allahabad High Court is not binding upon this Court. The said judgment may have a persuasive value, but we cannot loose sight of fact that when the judgment has an all India impact ordinarily another High Court should also follow that judgment unless it is held that the same is not correct. In Dwarkadas Khetan & Co. v. Commissioner of Income Tax, Bombay City reported in A.I.R. 1956 Bombay 321, Chagla C.J., speaking for the Division Bench observed - "Our uniform practice has been to fall into line with decisions given by other High Courts because Income Tax Act is an all-India Act, but with respect when we find that a view is taken which is contrary to the provisions of a section of the Income Tax Act, we cannot, again with respect, fall into line with such a view. More than authorities it is our duty to give effect to the provisions of the Act itself and when the provisions of the Act are clear no authority can persuade it to take a contrary view."
25. In an unreported decision delivered by another learned Single Judge of this court in The Chairman-cum-Managing Director, FCI & Ors. in re W.P 28555 (W) of 2017. It has been held as follows:-
"21. The circular impugned herein was challenged before the Patna High Court. The Division Bench of the Patna High Court upheld the learned Single Judge's order quashing the impugned circular. The Hon'ble Supreme Court dismissed the Special Leave Petition against the Division Bench judgment and order. I understand that the review petition filed by FCI before the Hon'ble Supreme Court has also been 22 dismissed by an order dated 26 March, 2019. Following the judgment of the Patna High Court, the 9 Chhattisgarh High Court has also set aside the same circular which is impugned in this writ application to the extent it contemplated recovery from the handling labourers. I agree with Mr. Sengupta, learned senior counsel that Judicial comity, discipline and propriety warrant that the same order be passed by this Court unless, of course, I have valid reasons to differ from the view taken by the Patna and the Chhattisgarh High Courts. I have gone through the judgments of the Patna and the Chhattisgarh High Courts and with due respect, I completely agree with the reasoning and conclusion thereof. I have no reason to differ from the view taken in the said judgments. I am also of the view that the impugned circular is liable to be quashed. A situation cannot be countenanced where the impugned circular will not operate in respect of the FCI handlours in Bihar and Chhattisgarh but will operate in West Bengal."
26. Coming to the fact of this case, when several similarly situated investors under the WIS were allowed permission to carry the consignment of third parties on the strength of the decision of the Orissa High Court, the doctrine of judicial comity and discipline demand that similar benefit should be given to the petitioner. Moreover, the special leave petition filed by the authorities before the Hon'ble Apex Court from the order dated December 22, 2016 passed in Gimpex Private Ltd. (supra) by the Orissa High Court, was dismissed. The proposition of law propounded by the Orissa High Court in this regard has thus, attained finality. Under such circumstances, the argument of Mr. Bose, that the orders of Orissa High Court were limited only to the petitioners before it and would not apply in case of the petitioners, is not acceptable.
27. With regard to the decisions relied upon by Mr. Bose, learned Senior Advocate appearing on behalf of the respondents, I hold that the decision in Union of India & Others vs. Southern Railway Employees Cooperative Stores workmen reported in (1998) 5 SCC 530 is not of any assistance to the respondents inasmuch as, in that case the dispute 23 between the workman and the Union of India had already reached a finality in previous litigation and the order passed therein was binding between the parties to the litigation as the order passed by the Tribunal had been confirmed by the Hon'ble Apex Court. As such, the Apex Court held that the parties thereto could not deny the liability or the binding effect of the decisions by taking a plea that subsequently a contrary view had been taken by another bench in a similar case. The facts are distinguishable in the case before this Court.
28. The principle of res judicata applies when a matter that was directly and substantially in issue in a previous proceeding was heard and finally decided by the court but, the same issue was again raised in the subsequent proceeding between the same parties. In order to establish, that the reliefs claimed by the petitioner were barred by the principles of constructive res judicata the respondents were required to show that the prayers in the earlier writ petitions were refused by the learned Single Judge when the matter was relegated to the authorities with specific observations as to the entitlement of the petitioner No.1 to get the permission to carry consignment of third parties. On the contrary the contentions of the petitioners were upheld in the previous decisions. With regard to the decision of Kaushik Cooperative Building Society (supra), I am of the opinion that the said decision had no manner of the application in the facts of the present case. The Hon'ble Apex Court in the said judgment held that the principle of resjudicata or constructive resjudicata had been adopted as a public policy to give a finality to the 24 decision of a court of competent jurisdiction and also to prevent multiplicity of proceedings. The case before this court is not one in which parties have raised a contrary plea on a matter which was finally decided by a court of competent jurisdiction and was abusing the process of court by filing one petition after another. On the contrary, the respondents have failed to comply with the specific directions of this Court passed in proceedings. There is no quarrel with the proposition of law laid down in the decision of T.P Moideen Koya (supra). The said judgment does not have any application in this case. The directions and observations of His Lordship in the judgment and order dated April 20, 2017 has attained finality insofar as the parties to this proceeding. His Lordship had directed that the authorities should pass a fresh order in the light of the decision of His Lordship dated April 20, 2017. Thus, the judgments relied upon by Mr. Bose do not apply under the facts and circumstances of this case and the reliefs claimed are not barred by the principles of res judicata or constructive res judicata.
29. I do not agree with the proposition that this Court was not competent to pass any mandatory order as similar prayers made earlier had been refused by this Hon'ble Court in W.P. No.5385 (W) of 2017 and W.P. No.19415 (W) of 2017 by relegating the matter to the authorities.
30. In my opinion, there was a subsequent cause of action when the impugned order dated November 15, 2017 was passed. While challenging the said order impugned, the petitioners do have a right to pray for a mandatory order for grant of the permissions sought for. The learned Single Judge did not refuse to pass orders in terms of the prayers 25 made in the earlier writ petitions but, upon being satisfied that the petitioner had a legal claim to be granted permission under the WIS to render services to third parties, had delegated the matter to the authorities for passing the necessary order. This cannot be interpreted to mean that the petitioners' prayers/reliefs in the earlier writ petitions had been refused by the learned Single Judge.
31. The order impugned to this writ petition dated November 15, 2017 is hereby quashed and set aside for the reasons and observations made hereinabove.
32. In view of the fact that the respondent No.5 has repeatedly passed similar order contrary to the directions of this court, the Chairman Railway Board is directed to consider the entire matter afresh in the light of the decisions rendered by this Court in W.P. No.5385 (W) of 2017 and W.P. No.19415 (W) of 2017. Upon such consideration, if it is found that the petitioner No.1 is similarly situated as those WIS investors in whose favour the Hon'ble Division Bench of Orissa High Court had passed necessary orders and on the basis of which the authorities had given permission to those investors in those cases, similar permission should be granted to the petitioner No.1. The petitioners will make an elaborate representation to the Chairman Railway Board containing all the documents in support of their case, including such documents relating to the other similarly situated investors who have been given permission to render services to third parties and carry consignments of third parties pursuant to the directions of the Hon'ble Orissa High Court. Such application should be made within 15 days from date. The petitioner 26 and/or its representative will be given a hearing and upon consideration of the same permission should be given. However, if it is found the petitioner No.1 was not similarly situated as those investors in respect of whom such permission had been given then, a reasoned order should be communicated to the petitioner.
33. However, it is made clear that while deciding the issue the respondents will not deny the permission to the petitioner No.1 on any of the grounds which have been finally decided by the learned Single Judge in his judgment and order dated April 20, 2017 and by the Hon'ble Division Bench of the Orissa High Court and also observed by this court hereinabove. The entire exercise should be completed within six weeks from date of receipt of a copy of the representation of the petitioner.
34. This writ petition is thus disposed of.
35. There will be, however, no order as to costs.
Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis.
(Shampa Sarkar, J.)