A.V. Devaki (W/o K. Kunhiraman Nambiar) v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** **WP(C).No. 12376 of 2010 (V) ----------------------------** **PETITIONER:** - **-----------** **A.V.DEVAKI,W/O K.KUNHIRAMAN NAMBIAR, KUNJUMBIDUKKA HOUSE, KANCHILERY, CHERIKODE, SREEKANDAPURAM, KANNUR.** **BY ADV. SRI.O.D.SIVADAS** **RESPONDENT(S):** **--------------** **1. UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION, LOK NAYAK BHAVAN, NEW DELHI.** **2. THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI.** **3. THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, GENERAL ADMINISTRATION (FFP.B) DEPARTMENT, THIRUVANANTHAPURAM.** **R1,R2 BY ADV.SRI N.NAGARESH R1,R2 BY ADV. SRI.S.KRISHNAMOORTHY, CGC R3 BY GOVERNMENT PLEADER SMT PRINCY XAVIER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-12-2016,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WPC 12376 OF 2010:** ## **----------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **--------------------** - **P1: TRUE EXTRACT OF THE UT/CONVICTION REGISTER MAINTAINED BY THE SUPERINTENDENT,CENTRAL JAIL,KANNUR.** - **P2: COPY OF THE PROCEEDING DATED 10/3/1975.** - **P3: COPY OF THE MEMORANDUM NO 19/1201/74 FFSZ DATED 25/5/1978.** - **P4: COPY OF THE PROCEEDINGS DATED 16/1/1974.** - **P5: COPY OF THE PROCEEDING NO 6/1/97 FF (P) DATED 20/1/1998 ISSUED BY THE GOVERNMENT OF INDIA.** - **P6: COPY OF THE COMMUNICATION NO 44418/FF A2/99/GAD DATED 20/7/1999.** - **P7: COPY OF THE JUDGMENT IN WPC NO 23184 OF 2009 DATED 13/8/2009.** - **P8: COPY OF THE ORDER ISSUED BY THE CENTRAL GOVERNMENT DATED 4/2/2010.** ## **RESPONDENTS EXHIBITS: NIL** **---------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **P.V.ASHA J.** ## **--------------------------------------------** ## **W.P.(C).No.12376 of 2010** **---------------------------------------------** Dated this the 16[th] day of December, 2016 ## **J U D G M E N T** Petitioner is the widow of a freedom fighter of Late.K.Kunhiraman Nambiar, who was arrested on 28.10.1947 in connection with Kavumbhai struggle and was remanded to jail, for offences under Sections 147, 148, 332 r/w Section 307 of Indian Penal Code. Later the case was committed to the court of Sessions Judge, North Malabar and numbered as S.C.21 of 1947. The copy of relevant extract of the jail register, produced as Ext.P1, shows the under trial suffering underwent by the petitioner's husband, for the period from 28.01.1947 to 29.10.1947. From Ext.P1 it can also be seen that the number of the case, committed to Sessions Judge, North Malabar, the offences charged against him under Sections 147, 148, 332 r/w Section 307 of Indian Penal Code, his number as prisoner-C No.6905. Petitioner has produced the order Ext.P2 dated 10.03.1975 by which her husband was originally granted Swantantrata Sainik Samman Pension (for short 'SSS Pension') with effect from 21.12.1974. However, that was withdrawn as per Ext.P3 order dated 25.05.1978, on the ground that the participation was in Kavumbhai struggle, which was not W.P.(C).No.12376 of 2010 2 recognized for SSS pension at the relevant time. On the basis of the very same participation, petitioner's husband was granted freedom fighters Pension under the State Government Scheme as per Ext.P4 order dated 16.01.1974. In the year 1998 the central Government issued orders, Ext.P5 on 20.1.1998 declaring Kavumbhai movement as one of the movements taken place in Kerala during the freedom struggle for the purpose of grant of SSS Pension. While recognizing the same, Central Government requested the State Government to call for applications from the participants of the movements after verification of documents produced in support of the claimed sufferings along with the specific recommendation of State Government about entitlement of the pension in accordance with provisions of SSS Scheme, 1980. 2. Petitioner's husband had submitted an application and it was forwarded by the Government as per Ext.P6 on 20.07.1999 along with Ext.P1 extract of the undertrial prisoners' register of Central Prison, Kannur. The application was duly forwarded by the Secretary to Government, General Administration Department of the State of Kerala. Since no action was taken, the petitioner had approached this Court and by Ext.P7 judgment dated 13.08.2009 in W.P.(C).No.23184 of W.P.(C).No.12376 of 2010 3 2009, this Court directed the respondents to take a decision on the application of the petitioner's husband. Thereafter Ext.P8 order was passed on 04.02.2010 rejecting the application on the following reasons: - “i. She has not furnished acceptable record-based primary evidence, duly verified by the State Government, in support of her husband’s claimed undertrial suffering (as indicated in para 4 above). - ii. In support of her claim, the petitioner has furnished a copy of extract from the UNDERTRIAL PRISONER REGISTER issued by Superintendent, Central Prison, Kannur. As per the said document, the petitioner’s husband was admitted into the prison on 28.1.1947. Against column 14 showing 'Disposal with date’ there is overwriting. Bare perusal of the photocopy of the document provided by the petitioner shows that earlier it was written as 'convicted on 29-1-47’. Then overwriting has been made on the date and it has been corrected as 29-X-47 Interestingly, ‘X’ is used as cross mark for cutting something and also as month of October while writing the date. There are fair chances that a person who was admitted into the prison on 28.1.47 was convicted on 29.1.47. This makes the authenticity of the document doubtful. Further, the document does not mention the period and nature of sentence given to the petitioner’s husband and as to what happened with the accused after conviction. Such a document cannot be treated as genuine one and pension cannot be granted on W.P.(C).No.12376 of 2010 4 the basis of this document. - iii. She has not furnished acceptable record-based secondary evidence, alongwith a valid Nonavailability of Records Certificate from the State Government (i.e., the competent authority) containing all ingredients prescribed therefor, in support of her claimed suffering (as indicated in para 5 above) - iv. The State Government has recommended the claim of the petitioner. However, the same does not appear as authentic. The report of Deputy Collector says that the petitioner’s husband was awarded imprisonment from 28.1 47 - 29.10.47. However, there is no such mention of any sentence in the document provided by the petitioner. Thus the report of the State Government is baseless and cannot be acceded to. - v. In the application dated 29.4.1998 the husband of the petitioner has mentioned her name as A.V. Devi Amma, whereas in the court order the name of the petitioner is mentioned as A.v. Devaki. This creates doubts regarding the genuineness of the claim.” 3. Thus objections were that the primary evidence furnished by the petitioner was not acceptable on account of the discrepancies and further that there was no record based secondary evidence along with valid Non-Availability Record Certificate from State Government. Yet another objection was that the recommendation of the State Government did not W.P.(C).No.12376 of 2010 5 appear authentic; objections were also raised regarding the difference in the name of the petitioner in the application of her husband and in the application submitted by her in order to reject the application. 4. This writ petition was filed when Ext.P8 order was received. It is pointed out in the writ petition that when original records have been produced there is no justification for seeking secondary evidence; Ext.P1 itself was sufficient to substantiate the claim of the petitioner. Moreover it is pointed out that Government have already granted pension on the basis of the very same certificates as per Ext.P2, which was withdrawn only as per Ext.P3 seeing that the said movement was not recognised then. It was thereafter when that movement was recognised, that the application was submitted again. 5. The State Government has filed a counter affidavit stating that the petitioner's husband was granted Kerala Freedom Fighters Pension on the basis of the recommendation of the District Advisory Committee. Government also stated that the original of the jail certificate Ext.P1 could not be verified by the District Collector since the original register was not traceable. 6. The first respondent has filed counter affidavit W.P.(C).No.12376 of 2010 6 explaining the circumstances under which SSS Pension is admissible, explaining the materials required in proof of the claims. It is admitted that SSS pension was sanctioned in favour of the petitioner's husband as per Ext.P2 order and that it was withdrawn in the year 1978 since Kavumbhai movement was not recognised. According to them, since certain discrepancies were seen in Ext.P1 extract of jail register, Ministry had addressed the State Government to verify the genuineness of the true extracts of under trial prisoner register of Central Prison, Kannur; by letter dated 02.04.2000, State Government had informed that the documents furnished by the petitioner were genuine. Thereupon, the Ministry again requested to verify whether the petitioner's husband was convicted or not and the reply to that was not received. It is further pointed out that the petitioner did not produce any further acceptable documentary evidence in support of her claim. It is also stated that extract of the under trial prisoner register contained a number of discrepancies, shortcomings namely overwriting, non-mentioning of the period of sentence awarded etc. According to them the State Government and jail authorities have not commented on the stated discrepancies especially the overwriting apparent on the face of the W.P.(C).No.12376 of 2010 7 document, though they verified the genuineness of the certificate. Several judgments are also relied on in the counter affidavit stating that the mere recommendation by the State Government will not make the appellant eligible for Samman Pension. 7. I heard the learned counsel appearing for the petitioner, the learned Government Pleader and the learned Standing counsel for the Central Government. 8. The petitioner has produced Ext.P1 extract issued from the Central Prison, Kannur which is the extract of under trial Prisoner register relating to the imprisonment under went by her husband during the period from 28.01.1947 to 29.10.1947, after the case was committed to Sessions Judge, North Malabar. The discrepancy pointed out with respect to this extract is regarding the date of conviction entered as 29-X-47 saying that there was over writing with respect to the month of conviction shown in digit written there. When the extract of the register maintained in the jail is certified by the Superintendent of Prisons and it is produced, that cannot be rejected saying that it is secondary evidence and the respondents were not right in seeking further evidence to support secondary evidence. It is a case where respondents themselves had W.P.(C).No.12376 of 2010 8 sanctioned pension to the petitioner's husband in the year 1974 and withdrawn in the year 1978. The fact that the said pension was withdrawn on the ground that the Kavumbaii movement was not recognised for SSS pension itself shows that the respondents were already convinced of the eligibility of the petitioner's husband for pension. 9. Moreover the learned counsel for the petitioner furnished for the photocopy of the judgment of the Court of Sessions, North Malabar Division in S.C.No.21 of 1947 dated 21.10.1947, in which the petitioner's husband Late.K.Kunhiraman Nambiar was the accused No.33. This judgment is handed over to the learned counsel appearing for the respondents also and they have also verified the genuineness of the inclusion of the petitioner's husband as 33[rd] accused in the judgment. The date of conviction referred to in Ext.P1 is the date of the judgment appearing in this judgment in the sessions case. 10. Under the above circumstances, I find that the doubts expressed by the respondents on the genuineness of Ext.P1, on the basis of the overwritings and the rejection of the application are absolutely baseless. 11. Now that this Court as well as the counsel for the W.P.(C).No.12376 of 2010 9 respondents have seen the judgment by which the petitioner's husband was convicted, I do not think that the petitioner should be again directed to approach the respondents along with the copy of that judgment or to direct the respondents to reconsider the matter on the basis of that judgment. In the above circumstances, I quash Ext.P8 and direct the respondents to sanction family pension under the SSS Pension scheme to the petitioner on the basis of the application submitted and forwarded as per Ext.P6 by her husband and to disburse the pension along with arrears within a period of three months from the date of receipt of copy of the judgment. Sd/- **P.V.ASHA, JUDGE.** AS