Nandaben I. Makwana vs Union Of India & Ors.

The applicant submits that her husband was working as a Cleaner-Mukadam under Western Railway at Anand. He allegedly remained absent from duty during the period from 28.02.2002 to 31.07.2002 on account of illness, including chronic abdominal pain and anaemia. In support of the medical grounds for his absence, the applicant has relied upon various medical certificates issued during the period from June to July 2002 and subsequent communications concerning his fitness to resume duty.

Despite the medical documents explaining the absence of her husband, the respondents initiated disciplinary proceedings against him by issuing a charge memorandum dated 13.01.2003 alleging unauthorised absence from duty. The applicant contends that the medical circumstances were not properly appreciated and that the disciplinary proceedings were conducted without affording her husband an adequate opportunity to defend himself.

Further, the competent authority vide order dated 08.12.2003, imposed the penalty of ‘removal from service without grant of compassionate allowance’. The applicant alleges that the penalty was disproportionate and that the respondents failed to consider the illness of her husband, the medical certificates produced by him and the length of service rendered by him.

The applicant further states that her husband preferred an appeal dated 25.03.2004 against the penalty order. However, the said appeal was not decided during his lifetime. Her husband subsequently expired on 26.12.2006. The applicant has also relied upon a memorandum dated 21.01.2004 concerning final settlement of dues and contends that the provident fund amount and other admissible dues were not released to the family.

After the death of her husband, the applicant submitted representations dated 12.04.2007 and 30.10.2015 requesting settlement of the outstanding dues and consideration of the family’s financial hardship but the respondents failed to provide the requisite relief despite these representations.

The applicant thereafter approached this Tribunal by filing O.A. No. 18/2016 along with M.A. No. 19/2016 seeking condonation of delay. During those proceedings, the respondents stated that upon verification of their records, no appeal dated 25.03.2004 could be traced. By order dated 05.05.2016, this Tribunal noted that more than 12 years had expired since the penalty order, that the applicant had neither produced any material to show that her husband had filed any appeal nor rebutted the respondents’ stand that no appeal was filed, and that no appeal was pending. It dismissed M.A. No. 19/2016 and rejected the O.A. “both on merit as well as on the ground of the delay and laches” under Section 19(3) read with Section 20(1) of the Administrative Tribunals Act, 1985. On a request for permission to file an appeal with a direction to consider it, the Tribunal declined to make any such observation, but made it clear that the applicant was “at her liberty, if she is advised to do so”. The applicant subsequently submitted a reminder dated 20.06.2016 seeking consideration of the appeal stated to have been filed by her late husband.

Learned counsel for the applicant submits that the impugned penalty order dated 08.12.2003 is arbitrary, disproportionate and unsustainable in law, as the respondents failed to appreciate that the absence from duty of the applicant’s husband was attributable to his illness. It is contended that the medical certificates and related documents placed on record were not duly considered before imposing the extreme penalty of removal from service without compassionate allowance.

Learned counsel further submits that the disciplinary proceedings were conducted without affording the deceased employee a reasonable and effective opportunity to defend himself. The inquiry was conducted ex parte and the relevant medical circumstances were not properly taken into consideration. It is argued that the respondents ought to have examined the material available on record before concluding that the absence was unauthorised and warranted removal from service.

Learned counsel for the applicant also submits that the deceased employee had preferred an appeal dated 25.03.2004 against the penalty order, but the same remained undecided during his lifetime. It is contended that the applicant, being the widow of the deceased employee and unfamiliar with the departmental procedures, made repeated efforts to pursue the matter and submitted representations and a reminder to the railway authorities.

Learned counsel further argues that the respondents have failed to release the provident fund amount and other admissible settlement dues of the deceased employee despite representations dated 12.04.2007 and 30.10.2015. It is submitted that the applicant and her family have suffered financial hardship following the death of the employee and that the respondents ought to have considered the matter in accordance with the applicable service rules.

In view of the above submissions, learned counsel for the applicant prays that the impugned penalty order be quashed and set aside and the respondents be directed to grant the admissible consequential benefits, including settlement dues, in accordance with law.

Per contra, respondents have filed their reply and denied the claim of the applicant.

Learned counsel for the respondents submitted that the present OA is barred by limitation, as no appeal, as claimed by the applicant, was ever received in the office of the respondents. He contended that, pursuant to the directions issued by this Tribunal, the respondents had duly verified their records, but no appeal preferred either by the deceased employee or by his legal representative was found pending in their office.

Learned counsel for the respondents further submitted that the present OA is a second round of litigation, as substantially similar contentions and grounds had already been raised and considered by this Tribunal in OA No. 18 of 2016. He drew the attention of the Tribunal to the order dated 05.05.2016, whereby the earlier OA was dismissed both on merits and on the grounds of delay and laches, having regard to the availability of the remedy under the Railway Servants (Discipline and Appeal) Rules, 1968. The applicant cannot be permitted to reagitate the same issues and grounds in the present proceedings, as doing so would amount to reopening the issues already dealt with by this Tribunal.

It was further contended that, although this Tribunal had observed in its earlier order that the applicant was at liberty to pursue an appropriate remedy, the said observation did not dispense with the requirement of availing the remedy in accordance with law. Learned counsel submitted that, instead of preferring an appeal against the relevant order, the applicant had merely submitted a reminder dated 20.06.2016, which could not be treated as an appeal by the competent authority.

Learned counsel for the respondents also raised the plea of res judicata and submitted that the grounds now raised by the applicant had already formed part of the earlier proceedings in OA No. 18 of 2016, which was dismissed by a reasoned order dated 05.05.2016. Therefore, the applicant is not entitled to reopen the same controversy through the present OA. Hence, the present OA is required to be dismissed.

It is an admitted position that the penalty of removal from service without grant of compassionate allowance was imposed upon the applicant’s husband vide order dated 08.12.2003. The applicant claims that her husband had preferred an appeal dated 25.03.2004 against the said order. However, the respondents have categorically denied receipt of any such appeal and have stated that no appeal could be traced in their official records. In the earlier round, this Tribunal found that the applicant had neither produced any material to show that her husband had filed any appeal nor rebutted the stand of the respondents that no appeal was filed, and that no appeal was pending.