Central Administrative Tribunal - Ernakulam
Jyothi B vs The Secretary Department Of Posts ... on 19 December, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.180/324/2019
Tuesday, this the 19th day of December, 2023
CORAM:
HON'BLE Mr. JUSTICE K. HARIPAL, JUDICIAL MEMBER
Jyothi B., W/o late G. Radhakrishna Pillai
Aged 50 years, (Ex-SPM, Vadakumthala East SO
Kollam Postal Division), Residing at
Puthurmadam, Vadakumthala East SO-690 536
- Applicant
[By Advocate : Mr. V.Sajith Kumar]
Versus
1. Union of India, represented by Secretary to Government
Department of Posts, Ministry of Communications
Government of India, New Delhi-110001.
2. The Chief Postmaster General, Kerala Circle
Trivandrum-695 033.
3. The Superintendent of Post Offices, Kollam Postal Division
Kollam- 691509.
4. The Director of Postal Accounts, GPO Building
Thiruvananthapuram- 695033
- Respondents
[By Advocate: Mr.S.R.K.Prathap, ACGSC]
The application having been heard on 06.11.2023, the Tribunal
on 19.12.2023 passed the following:
O.A 324/2019 2
ORDER
Applicant is the widow of late G.Radhakrishna Pillai, who was the Sub Postmaster at Vadakkumthala East Sub Office in Kollam Postal Division under the 3rd respondent. He passed away on 02.10.2017. Earlier, he was working in Manappally North Sub Office from 12.05.2014 to 14.05.2016. Towards DCRG the respondents passed an amount of Rs.13,02,210/- on 30.11.2018 through Annexure-A2. But the grievance of the applicant is that the 3rd respondent issued Annexure- A1 order disbursing the amount after making deduction of an amount of Rs.2,50,00/- towards the reported amount of loss/ departmental dues to be recovered in the RD fraud case of Manappally North Sub Office and Rs.1,01,179/- towards interest of HBA availed by the deceased. Annexure-A1 was issued on 30.03.2019. In protest of the unauthorised deductions made in the DCRG, the applicant did not receive the same.
2. Moreover, according to the applicant, after the death of her husband, alleging that a fraud had taken place in Manappally North Sub Office during the above stated period when her husband was O.A 324/2019 3 working as SPM, the RD agent had cheated the public and committed suicide. Pointing out the above facts and as insisted by the 3 rd respondent, for facilitating disbursement of the retirement benefits and for considering the application for compassionate employment, she was made to pay an amount of Rs.1,80,099/- towards contributory share fixed on her husband. She made such a remittance with much reluctance. The actual Government due from her husband is only Rs.1,01,179/- towards outstanding amount in the HBA interest. But the 3rd respondent, instead of releasing the amount, permitted the 4 th respondent to impose an additional liability on the deceased through a process unknown to service law. Even though disciplinary proceedings were initiated against Radhakrishna Pillai, it automatically came to an end on his death. The husband of the applicant was not the primary offender in the alleged fraud. The department has not taken appropriate action against the MPKBY agent, Smt. Sujatha, who committed suicide, under Public Accounts Default Act. Moreover, if further loss remains to be adjusted, it has to be quantified from the subsidiary offenders including supervisor and inspecting officers in O.A 324/2019 4 terms of Annexure-A3 instructions regarding fixing of contributory negligence/responsibilities. The applicant was made to remit an amount of Rs.1,80,099/- and directed to withhold Rs.2,50,000/- from the DCRG without making any quantification or fixing liability proportionately among subsidiary offenders. Thus the applicant made Anexures-A4 and A5 representations, which have not been considered yet.
3. Thus, according to the applicant, without making such quantification, withholding Rs.2,50,000/- from the gratuity and collecting Rs.1,80,099/- from her are illegal and unjust. Only Government dues are recoverable from the gratuity. The said amount of Rs.2,50,000/- or Rs.1,80,099/- are not Government dues. Rs.1,80,099/- was collected illegally, coercing the applicant, threatening to cause delay in settling retirement benefits. Such an amount is also liable to be refunded. Therefore, the Original Application, as amended, is to quash Annexure-A1, to declare that no amount other than Government dues would be recoverable from the gratuity, to direct the respondents to refund an amount of Rs.1,80,099/- deposited by the O.A 324/2019 5 applicant and to pay her interest at the rate of 18% on the amount covered under Annexure-A2.
4. On behalf of the respondents, the 3 rd respondent filed a reply denying the contentions in the Original Application. In the reply to the amended O.A, he questioned the last minute amendment and incorporation of additional relief touching the sum of Rs.1,80,099/-.
5. According to the respondents, the said Radhakrishna Pillai had entered Department of posts as Postman on 23.02.1991 and was promoted as Postal Assistant on 03.04.1995. During the period from 12.05.2014 to 14.05.2016 he was Sub Postmaster at Manappally North Sub Post Office. During that period, an RD/SB fraud was detected at the Sub Office. Sujatha R Nair, one of the MPKBY agents attached to that Sub Office committed suicide on 29.06.2016. Following her demise complaints were received by the 3 rd respondent from Smt.Jayasree and Smt.Biji, RD deposit account holders, alleging illegal closure of their accounts without their knowledge. Inquiries revealed that Radhakrishna Pillai had allowed the said closure while functioning as the SPM. It is alleged that applications for the closure of accounts O.A 324/2019 6 presented by the MPKBY agent was allowed by Radhakrishna Pillai without the knowledge of the depositors and without verifying their signatures in the closure/withdrawal forms with office records. The closure proceeds were also seen transferred by him into the Savings Bank account of the depositors without their consent and withdrawal was allowed from the SB accounts of the depositors without their knowledge. During the inquiry, depositors disowned the signatures found in the closure vouchers; they also denied receipt of closure value. Even though Radhakrishna Pillai had submitted that the accounts were closed by the account holders, who attended the office, after verifying the signatures in the closure forms with that of the specimen record, ultimately it was found untrue. When signatures were examined by the Director, Central Forensic Science Laboratory, Hyderabad, it came out that signatures found on the closure forms were not that of the account holders. After confirming fraudulent acts on the part of Radhakrishna Pillai, notice was issued to him by the 3 rd respondent to credit Rs.1,67,814/-, the amount involved in two cases. But he did not credit the amount. Thus disciplinary proceeding was O.A 324/2019 7 initiated against him under Rule 14 of the CCS(CCA) Rules, which is evident from Annexure-R1 dated 17.08.2017. But the charged official did not respond to the charge memo and hence Inquiry Officer and Presenting Officer were appointed on 19.09.2017 for conducting detailed inquiry. Radhakrishna Pillai was due for retirement on 30.11.2017. But he died on 02.10.2017 before commencement of the inquiry proceedings. Thus the proceeding was stopped.
6. Further, consequent to the death of Radhakrishna Pillai, the 2nd respondent directed the 3rd respondent to conduct past work verification of the works done by him at Manappally North Sub Office and to assess the total loss involved with further direction to withhold the pensionary benefits from DCRG to the extent of loss sustained. Past work verification of the late official was conducted through Inspector of Posts, Karunagappally Sub Division. According to the respondents, an amount of Rs.1,80,099/- is the amount included in two fraudulent closure cases which include Rs.1,67,814/- and penal interest which was credited by the applicant and the account was settled by the 3rd respondent.
O.A 324/2019 8
7. According to the respondents, as per Rule 119 read with Rule 115 and Rule 33 of the Post Office SB Manual Volume-I, the Sub Postmaster should compare the signatures of the depositors available in the SB 7(A) (closure form) with SB-3 card (account opening form) and authorise the premature closure. But Radhakrishna Pillai had not exercised the above check and allowed premature closure without insisting the presence of the depositors and amounts were withdrawn without the knowledge of the depositors. The lapses on his part is attributable to the commission of fraud which comes to the tune of Rs.3,47,913/- with interest/penal interest.
8. As the past work verification was not completed, the 2 nd respondent directed the 3rd respondent to withhold the pensionary benefits from the account of DCRG. On completion of past work verification, Annexure-A1 order was issued to release the DCRG amount of Rs.2,50,000/- towards suspected misappropriation in 18 accounts detected subsequently, Rs.2,24,024/- + Rs.25,976/- towards penal interest and HBA interest of Rs.1,01,179/-. It came out that the applicant did not accept the amount. When the O.A. came up for O.A 324/2019 9 admission on 15.05.2019, by an interim order, this Tribunal directed to release the amount not disputed. So, undisputed amount of Rs.9,51,031/- was paid to the applicant through cheque dated 03.06.2019.
9. According to the respondents, past work verification of all transactions done by the late official have since been completed and investigation of the suspected misappropriation of 18 RD accounts closed during this period was conducted by collecting the vouchers and the actual loss of Government money + interest has been assessed as Rs.1,85,547/- and the remaining sum of Rs.64,453/- can be refunded.
10. At the same time, in the 1 st reply it was stated that the husband of the applicant was identified as the primary offender in the SB/RD fraud, on completion of inquiry it came out that he was responsible for the fraudulent disbursement of Rs.2,24,024/-, and Rs.2,50,000/- is the amount towards such fraud including approximate penal interest.
11. Regarding the sum of Rs.1,01,179/- towards HBA interest it is submitted that Radhakrishna Pillai had availed a housing loan of O.A 324/2019 10 Rs.2,10,000/- on 15.03.1998. At the time of his death an amount of Rs.2,98,450/- (principle sum of Rs.2,10,000/- + interest of Rs.88,450/-) was recovered and sum of Rs.1,01,179/- was outstanding.
12. Rs.1,80,099/- is the sum of Rs.1,67,814, which was defrauded in the two instances, for which disciplinary proceeding was initiated under Annexure-R1, plus penal interest. Referring to Annexure-R5 it is submitted that when notices were issued to Radhakrishna Pillai by the 3rd respondent on 27.02.2017 and 31.03.2017, there was no response. Thereafter, Annexure-R5 was submitted by him on 17.04.2017 agreeing to pay the defrauded amount into the Government account and he sought three months time for payment. Thus the sum of Rs.1,80,099/- was paid by the applicant. The respondents denied the contention that the 3 rd respondent had directed the applicant to remit the amount for processing compassionate appointment application. Referring to Annexure-R3 they say that the application for compassionate appointment was recommended by the 3rd respondent on 12.07.2018.
13. According to the respondents, Manappally North Sub Office O.A 324/2019 11 is a single handed Post Office and the said Radhakrishna Pillai had allowed fraudulent closure of post office accounts without the knowledge of the depositors. According to them, O.A. is liable to be dismissed.
14. The applicant filed a rejoinder. According to her, the contentions challenging the order of amendment amounts to culpable criticism of the Tribunal. Such contentions should not be allowed to be raised by a party. The husband of the applicant should not have been made a scapegoat for the fraud committed by the MPKBY agent attached to Manappally North Sub Office, who had committed suicide on 29.06.2016. There is no allegation that the husband had embezzled money or that he had acted in connivance with the MPKBY agent. At the most, there is only supervisory lapses on his part. But the entire liability has been fastened on the husband for the loss, if any, sustained. Referring to Annexures-A7 and A8, he said that unlike such instances, the respondents have not initiated steps for recovering loss from the MPKBY agent by resorting to revenue recovery proceedings, taking steps to recover the entire loss from the husband of the O.A 324/2019 12 applicant is illegal. In cases of single handed Post Offices, verification is required to be done at the Head Office level by the Divisional Inspector; that has never happened. If such procedures were followed, the fraud could have been discovered much earlier. The applicant also blames the respondents for the delay in doing past work verification immediately after the death of the MPKBY agent. According to them, the respondents are predetermined to realise the entire loss from the husband of the applicant leaving out superior officers, which is illegal. She reiterated that amounts have been withheld without making proper quantification, the sum of Rs.1,80,099/- was illegally collected from her.
15. The relief claimed by the applicant has two limbs. First is to quash Annexure-A1 and seeking a declaration that she is not liable to pay any amount to the respondents except Government dues; in other words, withholding of Rs.2,50,000/- in Annexure-A1 is illegal and unjust, which is sought to be quashed. Second limb is the refund of Rs.1,80,099/- which was deposited by her before the 3 rd respondent. According to her, she was made to pay such an amount for the purpose O.A 324/2019 13 of processing her retirement benefits and to consider the application for compassionate appointment. The applicant was not liable to make any such payment, it was made in compelling circumstances and therefore the sum of Rs.1,80,099/- paid by her is liable to be refunded.
16. I heard the learned counsel for the applicant Sri.Vivek A.V., and Sri.S.R.K.Prathap for the respondents.
17. Admittedly, applicant is the widow of G.Radhakrishna Pillai, who was a Postal Assistant, who was working in Manappally North Sub Office during 12.05.2014 to 14.05.2016. During the period, some fraud was detected in the closure of SB/RD accounts of some depositors, which were revealed only after the death of the MPKBY agent, Smt.Sujatha, who had committed suicide on 29.06.2016. The husband of the applicant was the Sub Postmaster in that Sub Office at that time. Later he was transferred to Vadakkumthala East Post Office. While so, he died on 02.10.2017; he was due to retire on 30.11.2017. Even though an amount of Rs.13,02,210/- was sanctioned towards DCRG, the applicant contended that the an amount of Rs.2,50,000/- as well as Rs.1,01,179/- towards HBA interest were withheld from the same. The O.A 324/2019 14 applicant does not have any complaint with regard to the non-granting of Rs.1,01,179/- because so much amount was due towards the HBA availed by her husband, which is the Government due, whereas withholding of Rs.2,50,000/- is illegal. Similarly, the act of the 3 rd respondent in making her to deposit Rs.1,80,099/- was illegal. Therefore, sum of Rs.2,50,000/- as well as 1,80,099/- are sought to be paid to the applicant. In relation to this, she made Annexures-A4 and A5 representations which were not considered and that made her to approach this Tribunal.
18. Earlier, in the Original Application, reliefs with regard to the non-granting of Rs.2,50,000/- covered by Annexure-A1 alone were incorporated. During the course of final hearing, the O.A. was amended and relief (ii)(A) was also incorporated for refunding Rs.1,80,099/-.
19. The respondents admitted that Annexure-A2 order was issued for the release of Rs.13,02,210/- towards DCRG of the husband of the applicant. Later, it was found that the husband of the applicant was the primary offender in respect of a fraud committed in O.A 324/2019 15 Manappally North Sub Office and so much amount was withheld pending quantification of 18 RD accounts which were released during the period when Radhakrishna Pillai was the Sub Post Master. In the reply to the amended O.A., it has been submitted that during the pendency of the O.A. the quantification was completed and the actual amount along with penal interest lost to the Government has been found to be Rs.1,85,547/- and therefore that amount is liable to be recovered from the DCRG and the balance amount of Rs.64,453/- can be refunded.
20. Similarly, they have disputed the claim of the applicant that she was made to pay an amount of Rs.1,80,099/- by playing coercion. According to them, Annexure-R1 memo of charges deal with allegations against Radhakrishna Pillai, in relation to two accounts, in which the RD accounts were closed by the husband in connivance with the MPKBY agent and thus caused a loss of Rs.1,67,814/-. Referring to Annexure-R5 dated 17.04.2017 it is submitted that the husband of the applicant had agreed to refund the amount within three months and this 1,80,099/- is the amount of Rs.1,67,814/- together with penal O.A 324/2019 16 interest and therefore that amount is not liable to be refunded to the applicant.
21. The learned counsel for the applicant submitted that there is absolutely no justification in withholding any amount from the DCRG after the death of Radhakrishna Pillai. There is considerable delay in raising submissions based on Annexure-R5, which was not produced along with the first reply. There is also no mention about this letter in Annexure-R1 memo of charges and therefore it cannot be acted upon. He also pointed out that there is no allegation that Radhakrishna Pillai had embezzled any amount in connivance with the said MPKBY agent. There was only supervisory lapses on his part. The respondents ought to have made an exhaustive enquiry about the fraud happened in the said Post Office, but that was not done. Without making due quantification and fixing liability, entire liability ought not to have been fastened on the husband of the applicant. Moreover, after the death of the husband the applicant or her children have no liability to bear the burden. He also relied on various decisions and said that after the death of the Government servant such proceedings cannot be O.A 324/2019 17 continued, no amount can be withheld from the DCRG.
22. On the other hand, learned ACGSC said that the respondents are entitled to withhold so much amount from the DCRG. Two RD accounts were closed by the husband of the applicant during the period when he was the Sub Postmaster in Manappally North Sub Office and later charge sheet was filed against him. After his death, on making detailed verification, it was found that there were irregularities in 18 accounts and that amount has been quantified, and Rs.2,50,000/- was withheld tentatively, pending completion of the verification and now it is found that an amount of Rs.1,85,547/- is lost to the Government. That amount is liable to be recovered from the DCRG and the balance amount of Rs.64,453/- will be refunded. According to him, the sum of Rs.1,80,099/- is in respect of charges in Annexure-R1, which is not liable to be refunded.
23. As mentioned earlier, the husband of the applicant was a Postal Assistant and was a Sub Postmaster in Manappally North Sub Office during 12.05.2014 to 14.05.2016. One Sujatha R Nair was an MPKBY agent attached to that Sub Office. On 29.06.2016 she O.A 324/2019 18 committed suicide. Till that day there was no complaint against her. But after her committing suicide, complaints erupted from different corners that she had embezzled money. Enquiries revealed that during the period the husband of the applicant was the Sub Postmaster and the accusing finger had gone against him as well. Thus, initially, Annexure-R1 charge sheet was issued against the husband of the applicant incorporating two Articles of charges on the basis of complaints given by two RD account holders. The allegations were identical in nature. The first allegation, Article-I related to the complaint raised by Smt.Jayasree Suresh, Nandanam, Manappally North, who was an account holder in the Post Office. In the complaint she alleged that her RD account was closed premature, without her knowledge. Similarly, Article-II related to the complaint given by one Smt. Biji A, who was also an account holder and her account was also closed without her knowledge. In both the cases, the nature of complaints was identical. It was alleged that their RD accounts were closed without their knowledge and later the amounts covered by those accounts were transferred to the SB accounts opened in their O.A 324/2019 19 names and the amounts were allowed to be withdrawn. Both the account holders denied having presented themselves and received the amount.
24. In the preliminary enquiry, even though Radhakrishna Pillai had maintained that the amounts were handed over to the account holders themselves, on comparison of the signatures with the help of forensic expert, the signatures found on withdrawal forms were different from admitted signatures and the signatures in the specimen cards; it revealed that the signatures in the withdrawal forms differed and thus the charge sheet was laid against the husband of the applicant alleging that he had committed misconduct traversing Rules 3(1)(i), 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964. Even though the memo of charges and statement of allegations were served on him, he did not respond to the same. Thereafter Inquiry Officer and Presenting Officer were appointed. While so, he died on 02.10.2017. That means, the allegations raised in Annexure-R1 memo of charges and statement of allegations ended pre-mature, on the death of the delinquent officer on 02.10.2017. According to the O.A 324/2019 20 applicant, after the death of her husband, such proceedings should not have been continued and therefore any recovery or withholding of amount from the DCRG is illegal and unauthorized.
25. There cannot be any dispute on the proposition that after the death of the Government servant, no disciplinary proceedings can be continued, because employer-employee relationship ceases on his death. Therefore, respondents should not have initiated steps for recovering any amount from the pensionary benefits of the deceased employee.
26. It has come out that after the death of Radhakrishna Pillai, a detailed past work verification was done in Manappally North Sub Office through the Inspector of Post Offices and Annexure-A1 was issued pending completion of such verification. Thus, tentatively an amount of Rs.2,50,000/- which includes Rs.2,24,024/- as the amount which was allegedly misappropriated in 18 accounts detected in the enquiry conducted by the Inspector of Post Offices and the remaining amount of Rs.25,976/-is the approximate penal interest. Thus in Anexure-A1 it was directed that a sum of 2,50,000/- should be withheld O.A 324/2019 21 from the DCRG.
27. I have no doubt that such a procedure adopted by the respondents is illegal and oppressive. Apart from the averments in the reply that past work verification was done through the Inspector of Posts, who had found misappropriation of 18 accounts etc. no other details are available before the Tribunal. Secondly, everything was done after the death of the Government servant. Everything was done behind the back of the applicant and her children, who are the legal representatives of the deceased. After the death of the Government servant such proceedings are not valid and any enquiry conducted unilaterally by the Department cannot bind the applicant or her children. Therefore, action taken on the basis of such a report is non- est and is not enforceable.
28. The learned ACGSC has relied on the decision in Chairman cum Managing Director, Mahanadi Coalfields Limited v. Sri Rabindranath Choubey [AIR 2020 SC 2978]. I fail to understand as to how the dictum in this decision will apply to the facts of the case and would advance the case of the respondents. The ultimate finding of O.A 324/2019 22 the Supreme Court in the given facts of the case is that the employer has the right to withhold the gratuity during the pendency of the disciplinary proceedings. Here, even the respondents have no case that any disciplinary proceeding is pending on the date on which Annexures-A1 and A2 were issued. After the death of the Government servant, such proceedings cannot be said to be pending. It must die a natural death simultaneously with the death of the Government servant on 02.10.2017. Therefore, that decision cannot apply to the facts of the case.
29. As rightly pointed out by the learned counsel for the applicant and as held in various decisions reported in Y. Nagamani v. The State of Andhra Pradesh [2023 SCC online AP 1328], the judgment of the Madhya Pradesh High Court in Writ Petition 17214 of 2017 dated 30.08.2012 and the order of the Jaipur Bench of this Tribunal O.A.362 of 2017, a proceedings continued or any step to withhold pensionary benefits after the death of the Government servant is bad. Therefore whatever may be the finding of the Inspector of Posts in respect of 18 cases of misappropriation alleged to have been detected, O.A 324/2019 23 the applicant cannot bear the burden and no amount could have been withheld from the DCRG granted under Annexure-A2. The inquiry was done behind the back of the applicant. The applicant is not aware of any such inquiry or any such misappropriation in which her husband was a party. She is not aware whether he was a primary or secondary offender. Even though this Tribunal does not appreciate the argument of the learned counsel that there was only supervisory lapses on his part, there is no justification in withholding any portion of the DCRG amount and therefore, sum of Rs.2,50,000/- withtheld under Annexure-A1 shall be released. Annexure-A1 is bad and is liable to be quashed to that extent.
30. As mentioned earlier, the applicant does not have any quarrel with regard to the sum of Rs.1,01,079/- which was withheld, which is a Government dues being the outstanding amount towards the HBA. That amount can be withheld and therefore, the respondents are liable to release Rs.2,50,000/-
31. Now, coming to the latter limb, relating to the amount of Rs.1,80,099/-, which was reportedly deposited by the applicant on O.A 324/2019 24 compelling circumstances. As noticed earlier, the respondents deny that she was coerced to make such deposit. According to them, that was paid voluntarily and there was absolutely no compulsion on their part. They also justify that so much amount was payable by the husband, which was accepted by him through Annexure-R5 and therefore, that amount is not liable to be refunded.
32. After considering various aspects, I am of the view that an identical view as that of the earlier point cannot be taken on this claim. Rs.1,80,099/- was remitted by the applicant after the death of the husband. It has come out that, it is the amount covered by Annexure- R1 charge sheet laid against the husband of the applicant. He had died during the period when he was facing such allegations. Those charges are in respect of two RD accounts. There were allegations that the two RD accounts were closed by the Sub Postmaster violating the standing instructions and provisions of the Post Office Manual. The account holders made complaints that they did not make any request for closing the accounts and that accounts were closed in their absence. Even though the husband of the applicant was confronted with the O.A 324/2019 25 contentions, on forensic examination of the disputed signatures of the account holders, vis-a-vis the specimen signatures kept in the Post Office, it came out that those accounts were closed behind the back of the account holders.
33. Firstly, the husband of the applicant was working in a Post Office manned by a single person. Therefore, the argument that there was only supervisory lapses, cannot be accepted. Secondly, it came out that such accounts were closed without insisting the presence of the account holders. The Savings Bank accounts were opened in their names and at first the RD accounts were closed and proceeds of the RD accounts were transferred to the SB accounts and later the amounts were allowed to be withdrawn on the same day itself. That means, the Sub Postmaster was privy to a series of irregularities, violating the provisions of the Post Office SB Manual and that was how Annexure-R1 charge sheet was issued against him. The amounts of such accounts come to Rs.1,67,814/- and the sum of Rs.1,80,099/- includes this Rs.1,67,814/- and its penal interest.
34. In this connection, for numerous reasons, I am not inclined O.A 324/2019 26 to uphold the contentions of the applicant with regard to this amount. Firstly, as noticed earlier, there is absolutely nothing to say that the applicant was compelled or coerced to make such a remittance. There was absolutely no necessity for her to yield to any such pressure or compulsion. When such arguments touching vitiating circumstances are alleged, details of such compulsion or vitiating circumstances should be given as provided under Rule 4 of Order VI CPC. Such particulars are wanting in this case. Secondly, it is not disputed that the husband of the applicant had received memo of charges containing such allegations and even after receipt of Annexure-R1 he did not take care to give any reply statement; even though the allegations were not rebutted an Inquiry Officer as well as a Presenting Officer were appointed and the husband had died after such appointment. Here the vital aspect is that, even though he was afforded opportunity, he did not take care even to deny the charges.
35. Thirdly, in this background Annexure-R5 has to be appreciated. Annexure-R5 is a communication given by Radhakrishna Pillai addressed to the 3rd respondent stating that he is ready to pay O.A 324/2019 27 Rs.1,67,814/-, but sought three months time for making the payment. But he did not make the payment, while so, on 02.10.2017 he passed away. That means, the fact that he did not deny the allegations in Annexure-R1 together with Annexure-R5 communication dated 17.4.2017 make it abundantly clear that he was conscious of the liability and perhaps that is the reason why the applicant had chosen to make the payment.
36. The learned counsel for the applicant had vehemently pointed out that Annexure-R5 was produced only when the respondents filed their reply to the amended O.A. It is true that Annexdure-R5 was produced only later, along with the second reply. All the same, in the first reply statement itself, details of the sum of Rs.1,67,814/- which is a portion of Rs.1,80,099/-has been made mention by the respondents. Therefore, it cannot be stated that it is a subsequent thought. Having regard to the fact that Radhakrishna Pillai had not disputed the loss of Rs.1,67,814/- and that he had offered to remit the same, other legal impediments cannot stand on the way and therefore, so much amount is not liable to be refunded by the O.A 324/2019 28 respondents. However, the penal portion of that amount, that is Rs.12,285/- (1,80,099-1,67,814) shall be refunded to the applicant. The O.A. can be disposed of to the above extent.
37. It was also pointed out by the learned Standing Counsel highlighting nomination dated 18.09.1997 given by Radhakrishna Pillai that the DCRG has to be given to his wife and two children in equal shares, but the applicant alone has approached this Tribunal and therefore, in the absence of other legal heirs in the party array, such an application cannot be allowed. But the nomination is there. The nomination is valid. It is the settled proposition of law that if nomination is valid and undisputed, can be acted upon. There is no dispute among the legal heirs. After all, a nominee is a trustee and the applicant as one of the nominees has a duty to disburse the amount to the other nominees also. Therefore, the non-impleadment of the children of Radhakrishna Pillai has no legal consequences.
38. In the result, the O.A. is allowed in part. The respondents are directed to pay a sum of Rs.2,50,000/- and also Rs.12,285/-, which is the difference between Rs.1,80,099/- and Rs.1,67,814/- to the O.A 324/2019 29 applicant within sixty days from the date of receipt of a copy of this order.
39. The applicant also sought a direction to grant her interest; but having regard to the circumstances, I am not inclined to pass any order regarding the payment of interest.
The Original Application is disposed of as above. No costs.
(Dated, this the 19th December, 2023) JUSTICE K. HARIPAL JUDICIAL MEMBER ds O.A 324/2019 30 List of Annexures Annexure Al- A true copy of the Order No. C/09/2017 dated 30.03.2019 issued by the 3rd Respondent Annexure A2- A true copy of the gratuity sanctioning order No. POSTAL/2017/KE/24156/ dated 27/30.11.2018 issued by the office of the Director of Accounts, Kerala Circle Trivandrum.
Annexure A3- A true copy of the OM No.C-32016/07/2006-VP dated 14.11.2006 issued on behalf of the 1st Respondent. Annexure A4- A true copy of the representation dated 24.04.2019 submitted by the applicant to the 2nd Respondent Annexure A5- A true copy of the representation dated 24.04.2019 submitted by the Applicant to the 1st Respondent. Annexure A6 - A true copy of O.M. F. No. 11012/7/99- Estt(A) dated 20.10.1999 issued on behalf of the Department of Personnel & Training Annexure A7 - A true copy of the letter No. F/4-2/2010- 11 dated 01.10.2014 issued by the Superintendent of Posta, Changanassery Division to the District Collector, Kottayam Annexure A8 - A true copy of the letter No. F/4-2/2020- 11-Vol IV dated 29.08.2018 issued by the Superintendent of Posts, Changanassery Division to the District Collector, Kottayam Annexure R1:- A true copy of the memo No F1/04/2017-2018 dated 17/08/2017 issued by the 3rd respondent O.A 324/2019 31 Annexure R2:- A true copy of the letter No: INV /5-2/2017 dated 26/10/2017 issued by the 3rd respondent.
Annexure R3:- A true copy of letter No: BB/47/II/86/2017-18 dated 12/07/2018 issued by the 3rd respondent Annexure R4:- A true copy of the memo No: C/02/2019 dated 28/05/2019 issued by 3rd respondent Annexure R5:- True copy of the representation dated 17/04/2017 preferred by Shri.G. Radhakrishna Pillai to the 3d respondent along with the English translation *********