Gauhati High Court
Xtra Freight Forwarder vs The Union Of India And 6 Ors on 16 August, 2023
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/4
GAHC010180532023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4693/2023
XTRA FREIGHT FORWARDER
A PARTNERSHIP FIRM,
REPRESENTED BY SRI ANIL BAREJA,
AGE 55, D- 246, GROUND FLOOR,
GALI NO. 10, NEAR METRO STATION,
LAXMI NAGAR, NEW DELHI- 110092.
VERSUS
THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE SECRETARY,
MINISTRY OF RAILWAY, RAIL BHAWAN,
RAISINA ROAD, NEW DELHI- 110001.
2:THE PRINCIPAL CHIEF COMMERCIAL MANAGER
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI
KAMRUP(M)
PIN- 781011.
3:THE CHIEF COMMERCIAL MANAGER
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI
ASSAM.
PIN- 781011.
4:THE DIVISIONAL COMMERCIAL MANAGER
NORTHEAST FRONTIER RAILWAY
RANGIA
Page No.# 2/4
ASSAM
PIN- 781354.
5:THE RAILWAY BOARD
REPRESENTED BY THE EXECUTIVE DIRECTOR (FREIGHT MARKETING)
MALIGAON
GUWAHATI
ASSAM.
PIN- 781011.
6:THE SENIOR DIVISIONAL COMMERCIAL MANAGER
NORTH EAST FRONTIER RAILWAY
RANGIYA
ASSAM
PIN- 781354
Advocate for the Petitioner : MR P BHARDWAJ
Advocate for the Respondent : DY.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
16.08.2023 Heard Mr. P. Bhardwaj, learned counsel for the petitioner and Mr. K.K. Parasar, learned Central Government Counsel [CGC] for all the respondents.
2. Pursuant to a bidding process initiated vide Tender no. C259RNYLEASINGPCET05, the petitioner on emerging successful, was issued a Letter of Acceptance [LoA] for tender viz. 'Leasing of Parcel Cargo Express Train [PCET] from Azara [AZA] to Tungalakabad [TKD] for a period of six years on round trip basis, consisting 15 LVPHs + 1 SLR [363.9 tons] for first six months and 20 LVPHs + 1 SLR [483.9] for remaining period' ['the Contract-Work', for short]. The LoA further mentioned that intermediate parcel handling stations would be at New Jalpaiguri Junction [NJP], Sankrail Goods Terminal [SGTY], Alam Nagar [AMU] and Rampur [RMU]. After compliance of necessary formalities including deposit of Security Deposit, Page No.# 3/4 required on the part of the petitioner, the petitioner was issued a Work Order on 06.10.2022 whereby the petitioner was allowed to commence the Contract-Work from 04.11.2022 without fail. Accordingly, the petitioner started the Contract-Work of running of AZA-TKD-AZA lease Parcel Cargo Express Train Ex AZA on round trip basis from 04.11.2022.
2.1. It is projected that during the initial period, the petitioner faced a number of issues/difficulties in respect of loading and unloading goods at Tungalakabad [TKD] station but in course of time, the issues got resolved. The petitioner had further faced difficulties in loading/unloading of goods at Sankrail Goods Terminal [SGTY] within the jurisdiction of Eastern Railway. The main difficulty faced by the petitioner at Sankrail Goods Terminal [SGTY] was that there was no shed at SGTY and as a result, substantial damages to goods occurred at the time of loading and unloading of SGTY. The petitioner made requests for changing of intermediate parcel handling station from Sankrail Goods Terminal [SGTY] to Chitpur Station [CP], which is also within the jurisdiction of Eastern Railway in terms of the 'Policy for leasing of Parcel Cargo Express Train [PCET]', more particularly, para 2.8 thereof, notified by FM Circular no. 04 of 2016 dated 15.06.2016 by the Railway Board, Ministry of Railways.
2.2. It is the case of the petitioner that despite repeated representations from the petitioner to change the intermediate parcel handling station from Sankrail Goods Terminal [SGTY] to Chitpur Station [CP], that too, after obtaining necessary permission from the Eastern Railway, the NF Railway authorities declined the said prayer through the respondent no. 4 vide its letter dated 27.06.2023 [Annexure-21]. When an appeal was preferred by the petitioner, the appellate authority also rejected the prayer of the petitioner vide Final Intimation dated 26.07.2023 [Annexure-26]. By the Final Intimation dated 26.07.2023, the petitioner was intimated that action would be initiated as per Clause 11 of the Contract Agreement and the Contract Agreement would be terminated. It was further observed that in case of termination, the security deposit would be forfeited and the petitioner would be debarred from fresh registration for a period of 5 [five] years.
3. Mr. Bhardwaj, learned counsel for the petitioner has contended that neither the letter dated 27.06.2023 [Annexure-21] nor the Final Intimation dated 26.07.2023 has disclosed any Page No.# 4/4 reason and as such, both the decisions contained therein have suffered from irrationality and arbitrariness. The petitioner was served with the Order of Termination dated 11.08.2023 [Annexure-27] whereby the Contract-Work which was for a period of 6 [six] years from 04.11.2022 to 03.11.2028, stood terminated with immediate effect. By the Order of Termination, it was further informed to the petitioner that he has been debarred from fresh registration for a period of 5 [five] years. The Order of Termination contains other penalties also.
4. Mr. Parasar, learned Central Government Counsel while raising the issue of maintainability, has contended that the petitioner ought to have resorted to arbitration. It is contended by him that there is also remedy of appeal. He has prayed for time till 28.08.2023 to obtain the necessary instructions.
5. Issue notice, returnable on 28.08.2023.
6. As Mr. Parasar has appeared and accepted notices on behalf of all the respondents no formal notice is needed to be issued. Mr. Bhardwaj shall furnish extra copies of the writ petition along with the annexures, to Mr. Parasar during the course of the day.
7. Having regard to the projections made on behalf of the petitioner in the afore-stated manner, it is provided that till the returnable date, the respondent authorities shall not take any coercive measures against the petitioner in deference to the Order of Termination dated 11.08.2023.
8. List the case on 28.08.2023.
JUDGE Comparing Assistant