Nandaben I Makwana vs M/o Railways

:: 1 :: OA No.360/2018






CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BENCH
Original Application No. 360/2018

th
Dated this the 15 day of October, 2026.


Reserved On: 21.09.2026
Pronounced On: 15.10.2026



CORAM:
Hon’ble Shri Jayesh V Bhairavia, Member (J)
Hon’ble Shri Sanjiv Kumar, Member (A)

1. Nandaben I. Makwana
W/o. Shri Ishwarbhai Makwana
Aged 51 years,
R/o. : Vankawas,
Nr. Government Dispensary,
Dabhoi, Dist – Vadodara.

… Applicant

(By Advocate Ms. S S Chaturvedi)

V/s.

1. Union of India,
Notice to be served through
General Manager,
Western Railway,
Churchgate,
Mumbai – 400 020.

2. Assistant Engineer (N)
Western Railway,
Pratapnagar,
Baroda – 390 004.

3. Sr. Divisional Engineer (N)
Western Railway,
Pratapnagar,
Baroda – 390 004.
… Respondents

(By Advocate Mr. H D Shukla)


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ORDER

Per: Hon’ble Shri Sanjiv Kumar, Member (A)
1. Applicant has filed the present OA, under Section 19 of the
Administrative Tribunals Act, 1985, seeking following reliefs:
“8.1 Lord Ships be pleased to admit this petition. And be
pleased to issue order quash and setting aside order no.
E/308/5/3/43 dated 08.12.2003 passed by AEN BRC as
Annexure A/1. And be pleased to direct the respondent to treat
the deceased employee on duty and released all the retirement
/death benefit with all consequential benefit.
8.2 The Order for be call for the record.
8.3 Any other relief which the Hon’ble Tribunal deems fit.
8.4 Cost of suit be awarded.

2. Brief facts of the case as stated by the applicant are as under: -
2.1 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.
2.2 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.
2.3 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
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illness of her husband, the medical certificates produced by him and
the length of service rendered by him.
2.4 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.
2.5 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.
2.6 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.
3. Submission of learned counsel for the applicant:
3.1 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
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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.
3.2 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.
3.3 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.
3.4 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.
3.5 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.
4. Submission of learned counsel for the respondents:
4.1 Per contra, respondents have filed their reply and denied the claim of
the applicant.
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4.2 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.
4.3 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.
4.4 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.
4.5 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.
5. Applicant has filed rejoinder and reiterated the submissions made in
the OA. Applicant submits that she had preferred an appeal on
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25.03.2004 against the relevant order, but the respondents failed to
decide the same. She further submits that although the earlier OA No.
18/2016 was dismissed on the ground that the respondents denied
receipt of the appeal, the Tribunal had granted liberty to the applicant
to file an appeal or reminder. Accordingly, the applicant submitted an
appeal/reminder dated 20.06.2016, which has also not been decided
by the respondents.
6. Heard learned counsel for the parties and perused the material
available on record.
7. The principal issues that arise for consideration are whether the
present OA is barred by limitation, whether it is barred by res
judicata in view of the earlier order passed in O.A. No. 18/2016, and
whether the applicant has established sufficient grounds for
interference with the impugned penalty order dated 08.12.2003.
7.1 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.
8. We further observe that the applicant had earlier approached this
Tribunal by filing O.A. No. 18/2016, wherein substantially similar
grievances relating to the penalty order and the consequential benefits
were raised. The said Original Application was rejected by order
dated 05.05.2016 both on merit and on the ground of delay and
laches, M.A. No. 19/2016 for condonation of delay having been
dismissed. Although the Tribunal observed that the applicant was at
liberty to file an appeal, if so advised, while expressly declining to
direct the respondents to consider it, such liberty cannot be construed
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as an automatic extension of limitation or as a direction to reopen the
disciplinary proceedings without satisfying the requirements of law.
8A. The delay in challenging the penalty order dated 08.12.2003 was the
subject of M.A. No. 19/2016 seeking condonation of delay in the
earlier round, which this Tribunal dismissed by order dated
05.05.2016, holding the claim to be stale; that order has attained
finality. The present O.A., filed in 2018, is again directed against the
same penalty order and is beyond the period prescribed under Section
21(1) of the Administrative Tribunals Act, 1985. The only subsequent
event relied upon, the reminder dated 20.06.2016, being a reminder
of an appeal found not to have been established, does not give rise to
a fresh cause of action or restart limitation; even reckoned from that
date, the O.A. ought to have been filed by about 20.12.2017.
9. The applicant contends that she submitted an appeal/reminder dated
20.06.2016 in terms of the liberty granted by this Tribunal and that
the respondents have failed to decide the same. The liberty in
paragraph 9 of the order dated 05.05.2016 was only a liberty to file an
appeal, if so advised; the Tribunal expressly declined to direct the
respondents to consider any such appeal. That liberty neither
condoned the delay nor revived the cause of action, which the
Tribunal had found to be stale. Further, the applicant did not file an
appeal; the communication dated 20.06.2016 is, on her own showing,
a reminder of the appeal dated 25.03.2004, which this Tribunal had
already found not to have been established.
10. We have also considered the applicant’s submissions regarding the
illness of her husband, the medical certificates allegedly produced
during the relevant period and the alleged procedural irregularities in
the disciplinary proceedings. These contentions essentially relate to
the validity of the original penalty order and were part of the
grievance pursued in the earlier round of litigation. In view of our
findings on limitation and res judicata , we do not enter into the
merits of the challenge to the penalty order.
11. As regards the plea of res judicata raised by the respondents, the
order dated 05.05.2016 was passed between the same parties, in
respect of the same penalty order dated 08.12.2003 and substantially
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the same reliefs. This Tribunal there found that no appeal was shown
to have been filed and none was pending, dismissed M.A. No.
19/2016, and rejected the O.A. both on merit and on the ground of
delay and laches. That order was not challenged and has attained
finality. The present O.A., founded on the very appeal dated
25.03.2004 which was found not to have been established, seeks to
reopen what was finally decided, and is barred by the principle of res
judicata .
12. In view of the foregoing discussion, we find that the applicant has
failed to establish sufficient grounds for interference with the
impugned order dated 08.12.2003. The challenge to the said order is
barred by limitation and by res judicata , and the subsequent
submission of a reminder dated 20.06.2016 does not revive the claim
or entitle the applicant to the reliefs sought in the present OA.
13. Accordingly, the OA is dismissed.
14. No order as to costs.
15. MA pending if any, also stands disposed of.



(Sanjiv Kumar) (Jayesh V Bhairavia)
Member (A) Member (J)


//Anu//
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