IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 16591 of 2008 Ashirvad Enterprises, Bangaon Road, Saharsa, P O & P S : Saharsa, Dist : Saharsa through its Manager, Vidyanand Pathak, son of late Shri Ram Narayan Pathak, resident of Marwari Mohalla, Begusarai, P O, P S & Dist : Begusarai - Petitioner Versus 1 The Union of India through Chairman, Railway Board, New Delhi 2 The General Manager, East Central Railway, Hajipur, P O & P S : Hajipur, Dist – Vaishali 3 The Chief Commercial Manager, East Central Railway, Hajipur, P O & P S – Hajipur, Dist – Vaishali 4 The Deputy Chief Commercial Manager, East Central Railway, Hajipur, P O & P S : Hajipur, Dist : Vaishali 5 The Assistant Commercial Manager, Goods, East Central Railway, Hajipur, P O & P S : Hajipur, Dist : Vaishali - Respondents ----------- 2 13.05.2009 Petitioner is a C & F agent for cement at Laheriasarai and Saharsa for ACC Limited. Cement from various factories arrives in covered railway wagons. At the goods shed of Laheriasarai and Saharsa railway stations, wagons are placed by the Railway and the petitioner is informed about their arrival so that he can conveniently unload the same. Earlier the working hour for goods shed was between 6 am to 10 pm. It is within this time the wagons had to be unloaded. For the period beyond that, no demurrage charges were levied because the goods shed working time seized. It appears that this was creating problem with the Railways because for 8 hours in the night no wagon unloading work was done and wagons stood occupied as stationary. This increased the demand of rolling stock. In order to make available rolling stock in larger quantity, Railways took a decision to make working hours round the clock. The General Managers of each Zonal Railways were given the discretion to implement the policy from station 2 to station. It may be noted that it was not a policy which had to be applied throughout the length and breadth of the country at the same time. Petitioner’s grievance is that the manner in which the policy is to be extended itself shows that it cannot be mechanically done. Before applying this 24 hours work schedule, Railways have to evaluate the amenities and facilities available. On behalf of petitioner, it is submitted that under the garb of quick turnover what Railway is trying to achieve is an unjust enrichment. Knowing fully well that the infrastructure, amenities and facilities are not yet available at all stations for 24 hours loading and unloading, they have extended the policy to those stations. The result is that in the limited time that is available to load or unload a wagon round the clock, it is invariably not possible to do so in the late hours of the night and, thus, the person incurs heavy demurrage charges. The true intent of the policy is to realise demurrage charges. Petitioner’s grievance is that Saharsa and Laheriasarai lack in infrastructure for such a 24 hours unloading. Learned counsel submits that in these stations, porters are not readily available at night. Trucks are not readily available at night. Both stations lack infrastructure in the shape of sheds where cement, which is highly perishable, can be stored awaiting further transport. It is submitted that thus the implementation of policy without taking into account these things is not proper. In the counter affidavit, it has been stated that since the implementation of this policy about six months’ back at the two stations, the wagon turn around has increased thereby meaning that 3 wagons are free quicker than before. It is stated that various steps have been taken by the Railways to provide infrastructure and facility like flooring, waiting room for traders, lighting etc. Unfortunately, there is no mention to provide for porters or sheds which are the two life lines of the petitioners. It is one thing to have a policy to economise once activated and yet another thing to implement that policy at different places having different problems. One of the facets of Article 14 of the Constitution is treating unequals equally. Equally true is treating equals unequally. Here what the petitioner submits is that Railway authorities have looked only to their side of the problem and have not really taken into account the difficulties of traders like the petitioner at night. They are unable to get people to unload the wagons. At night, they are unable to get trucks in sufficient numbers to remove the goods from the goods shed. The goods shed both at Laheriasarai and Saharsa do not have adequate covered space to store cement bags even if they were to be unloaded from the wagons to avoid demurrage charges. This apart, the question of safety and security of personnel working at the shed and outside at the dead of the night has not been considered. The counter affidavit does not at all address to any one of these problems. Having considered the matter, in my view, though the policy itself is not wrong, arbitrary or illegal in any manner, its implementation lacks fairness as is apparent, discretion was left to the General Managers of various Zonal Railways to implement the policy. This itself implies that there had to be an objective assessment 4 stationwise before the policy could be implemented. From the counter affidavit, there does not seem to be any exercise undertaken for objective satisfaction for implementation of the policy. The stand of the Railways appears that I am concerned about my affairs and you look your affairs. Unfortunately, that is a myopic view. Railway is not an individual private commercial organization. It is a State instrumentality. It is governed by Article-14 of the Constitution. All its actions are subject to rule and norm of non-arbitrariness and non-discriminatory apart from being reasonable and fair. I regret that the decision to extend this policy to Laheriasarai and Saharsa stations does not appear to have preceded on basis of any rational objective assessment of the practical difficulties and the facts emanating at those two stations. I am, therefore, constrained to hold that extension of the policy to the two stations aforesaid cannot be sustained as valid in law. Railway is restrained from enforcing the said policy of round the clock working in those stations unless a proper assessment, as indicate above, is made and facilities provided and ensure accordingly. Practical difficulties have to be kept in mind because we are not working on paper but on ground and once we are working on ground, ground realities have to be considered. With the aforesaid observation and direction, the writ application stands allowed. M.E.H./ (Navaniti Prasad Singh)