Chandramathy Sankunni v Union of India and State of Kerala (W.A. No. 2213 of 2018)

W. A. No. 2213 of 2018 -1- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, ``` ``` 1944 ``` ``` WA NO. 2213 OF 2018 ``` ``` AGAINST THE JUDGMENT WP(C) 22539/2015 OF HIGH COURT OF ``` ``` KERALA ``` ## **`APPELLANT/S:`** ``` CHANDRAMATHY SANKUNNI, AGED 78 YEARS AGED 78 YEARS, W/O.LATE KELAN SANKUNNI, VETTATHUCHIRA, KALAVAMKODAM PO, CHERTHALA. ``` ``` BY ADVS. T.G.SUNIL (PRANAVAM) SRI.J.OM PRAKASH SRI.C.X.ANTONY BENEDICT ``` ## **`RESPONDENT/S:`** - **`1 THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, 2ND FLOOR, NDCC II BUILDING, PARLIAMENT STREET, NEW DELHI - 110 003.`** ``` 2THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADVS. SMT.MINI GOPINATH, CGC SMT.C.G.PREETHA SMT.SHEELA DEVI.I., SC, CENTRAL BOARD OF EXCISE AND CUSTOMS SRI. JAISHANKAR V. NAIR, CGC ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. No. 2213 of 2018 -2- ## **J U D G M E N T** ## Shaji P. Chaly, J. Petitioner in W. P. (C) No. 22539 of 2015 has filed the writ appeal challenging the judgment of the learned Single Judge dated 07.08.2018 whereby the following reliefs sought for in the writ petition was declined:- “i. Issue a writ of certiorari calling for the records relating to Ext. P12 and quash the same; ii. Issue a writ of Mandamus directing the first respondent to grand pension to the petitioner from the date of receipt of the Ext. P4 application.” 2. The subject issue arises under the provisions of the Swatantrata Sainik Samman (SSS) Pension Scheme. The contention advanced by the appellant in the writ petition is that petitioner’s husband Sri. K. N. Sankunni was an active participant of the Punnapra – Vayalar struggle; and on that account, the Police arrayed him as an accused in case No. PE 10/1122 ME before the Special Magistrate Court, Alappuzha and accordingly he was arrested and was lodged in the Sub Jail, Alappuzha for about seven months. It is also stated that W. A. No. 2213 of 2018 -3- the husband of the appellant was the 2[nd] accused in the above case. It is further submitted that later, the above case was committed to the Sessions Court, Alappuzha where it was numbered as SC 9/1123, which was later transferred to the Additional Temporary Sessions Court, Thiruvananthapuram. It is the prime contention of the appellant that her husband was transferred to the Central Jail on 27.04.1123; however on 16.06.1123, he was acquitted by the Court. The contention of the appellant is that he was in custody for nine months and therefore entitled to the freedom fighters pension as per the Scheme specified above. 3. In fact the petitioner has submitted an application under the Scheme on the basis of the certificates issued by the jail authorities and one P. A. Solomon, Ex MP dated 07.07.1973 and 10.05.1973. Petitioner has also secured Ext. P7 certificate dated 25.11.1971 from the Tahsildar, Cherthala wherein it is stated that the petitioner’s husband was under detention for not less than six months. Anyhow, the State Government as per Ext. P9 order dated 12.02.2004 informed the petitioner that the pension papers forwarded under the Scheme was rejected. Apparently, the application was rejected for the reason that the appellant’s husband has not undergone detention for a period of six W. A. No. 2213 of 2018 -4- months which is the eligibility criteria as per the Scheme 1981, formerly known as Freedom Fighters Pension Scheme, 1972. 4. Later, appellant approached this Court by filing W. P. (C) No. 7313 of 2012 and as per Ext. P10 judgment dated 02.12.2015, the writ petition was disposed of directing the State Government to reconsider the matter in the light of the certificate issued by the Tahsildar, Cherthala. The State Government again considered the matter and has passed Ext. P11 order dated 27.02.2015 narrating the facts and circumstances in its entirety, however recommendation was made to the Government of India stating that the appellant’s husband suffered nine months imprisonment as per the available documents. The said order reads thus:- ## “ **GOVERNMENT OF KERALA** GENERAL ADMINISTRATION (FFP-A) DEPARTMENT No.4225/FFPA2/2015/GAD Thiruvarianthapuram Dated: 27.02.2015 From The Secretary to Government To The Secretary to Government of India, Ministry of Home Affairs, 2[nd] Floor NDCC-II, Parliament Street, New Delhi 110 001 W. A. No. 2213 of 2018 -5- Sir, - Sub: GAD-Swathanthrata Sainik Samman Pension Scherne,1980- Compliance of judgment dated 2[nd] December 2014 in WP(C) No. 7313/2012 filed by Smt. Chandramathy Sankunni – Reg. - Ref:-1. Judgment dated 02.12.2014 in WP(C) 7313/2012 received from High Court of Kerala. 2. Representation dated 16.02.2015 received from Smt. Chandramathy Sankunni. Smt. Chandramathi Sankunni had submitted an application for SSS Pension with enclosures claiming that her husband Kelan Sankunni had participated in the Punnapra Vayalar Stiggle and was accused in PE 10/1122 and suffered imprisonment for six months in Sub jail, Alappuzha followed by three months imprisonment in Central Jail, Thiruvananthapuram. In support of the claim she had produced extract register from Central Jail, Thiruvananthapuram. But she had not produced proof for the claimed imprisonment in defunct Sub Jail, Cherthala. The petitioner has also produced the Co prisoners Certificate from Sri.P.A.Solomon Ex.M.P., a certificate from Superintendent, Sub Jail, Alappuzha and a report of Tahsildar. Cherthala. Though the District Collector, Alappuzha recommended the case State Government returned the same to District Collector as the claim has not been supported by valid documentary evidence prescribed in the guidelines of SSS Pension Scheme, 1980. As per the direction of the judgment State Government examined the pension claim and found that though the claimed suffering of the petitioner's husband is more than six months she W. A. No. 2213 of 2018 -6- could not produce proof for the same. In the absence of primary evidence, the CPC issued by Sri.P.A.Solomon Ex.MP cannot be accepted as per SSS Pension Scheme as certifier had imprisonment suffering only for ten months. The petitioner was heard in person on 04.02.2015 by the Joint Secretary, GAD. At the time of hearing the petitioner has produced the originals of the extract register from Central Jail. Thiruvananthapuram, Certificate from Superintendent of Sub Jail, Alappuzha, Co-prisoner certificate from Sri.P.A.Solomon Ex.M.P. and Tamrapatra. But the petitioner could not produce documentary evidences to prove her husband's imprisonment period for more than six months. Hence she was allowed 15 days time to produce proof for the claimed imprisonment in defunct Sub Jail, Cherthala or two Co- prisoner Certificates (CPC) from freedom fighters who have proven jail sufferings of minimum one year and who were with the petitioner's husband in the jail. In the representation referred 2[nd] above, Smt. Chandramathy has informed that her husband was the 2[nd] accused in PE 10/1122 ME of the Special Magistrate Court, Alappuzha and he was arrested and kept in the Alappuzha Sub Jail (Defunct lock-up) for about 7 month. Later the above court committed the above case to the Sessions Court, Alappuzha where the case numbered as SC No. 9/1123 and the same was transferred to the Additional Temporary Sessions Court, Thiruvananthapuram. Accordingly her husband was transferred to Central Jail, Thiruvananthapuram. The petitioner has submitted a copy of case file of PE 10/1122 in which her husband's name was listed as 2[nd] W. A. No. 2213 of 2018 -7- a certificate from Superintendent of Sub Jail, Alappuzha and also an attested copy of report of the Tahsildar, Cherthala. The petitioner has produced the original extract of the imprisonment in Central Prison, Thiruvananthapuram for 3 months. But she could not produce proof of her husband's imprisonment in defunct Sub Jail, Cherthala or 2 Co-prisoner Certificates as prescribed in the SSS Pension Scheme, 1980. She has produced an attested copy of the Report of Cherthala Tahsildar in which it was reported that the petitioner had imprisonment suffering period for 9 months. Moreover, the Hon'ble court has directed to reconsider the Ext. P1 application after adverting to Ext. P7 report and also other materials being placed by the petitioner. In the circumstances the application of Smt.Chandramathy for Swatantrata Sainik Samman Pension is recommended and forwarded on the basis of the report of Tahsildar, Cherthala that the petitioner's husband had suffered 9 months imprisonment, along with the available documents. Thus the directions contained in the judgment cited as 1 have been complied with. Yours faithfully, Sd/M.SHAHUL HAMEED, Joint Secretary For Secretary to Government” 5. Anyhow as per Ext. P12 order dated 13.04.2015, Ministry of Home Affairs, Government of India rejected the said application W. A. No. 2213 of 2018 -8- taking into account the recommendation made by the State Government; however found that appellant’s husband suffered imprisonment only for a period of three months in Central Prison, Thiruvananthapuram; and she could not produce proof of her husband’s imprisonment in defunct Sub Jail, Cherthala or two coprisoner's certificates as prescribed in the SSS Pension Scheme, 1980 and therefore rejected the claim. The said order reads thus:- “No.52/CC/K/22/2012-FF/SZ Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya FFR Division/SZ Section 2 floor, NDCC-11, Parliament Street, New Delhi - 110001, Dated 13 April, 2015. To Shri Jyothilal K.R., Secretary, Government of Kerala, General Administration (FFP.A) Department, Thiruvananthapuram-695 001, Kerala. Subject: Swatantrata Sainik Sarnian (S.S.S.) Pension Scheme, 1980 – Claim application of Smt. Chandramathy Sankunni, W/o (Late) Kelan Sankunni – regarding. 3. The petitioner filed W.P. No. 7313 of 2012 before the High Court of Kerala, requesting Hon'ble High Court to direct the Government of Kerala to recommend her case and the Central Government to grant her pension under the Swatantrata Sainik Samman Pension Scheme, 1980. W.P. No. 7313 of 2012 has W. A. No. 2213 of 2018 -9- been disposed of by the Hon'ble High Court vide Judgment dated 02.12.2014, directing the Government of Kerala to reconsider her claim and furnish the verification report in the light of report of the Tahsildar and other material, placed by the petitioner. In compliance of Judgment dated 02.12.2014, the State Government has furnished its verification report vide letter No. 4225/FFPA2/2015/GAD dated 27.02.2015 in respect of the claim of Smt. Chandramathy Sankunni. 4. On receipt of the mandatory State report, the claim of Smt. Chandramathy Sankunn has been examined keeping in view the report of the State Government, documents on record and the applicable provisions of the Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980. 5. As per the provisions of the S.S.S. Pension Scheme, 1980, any applicant who claims imprisonment and underground suffering is eligible for grant of Samman pension provided the following conditions are fulfilled:- **Imprisonment Suffering:-** A person who had suffered minimum imprisonment of six months (3 months in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidence:- **a) Primary Evidence:-** Imprisonment/detention certificate from the concerned jail authority District Magistrate or the State Government indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release. W. A. No. 2213 of 2018 -10- **(b) Secondary Evidence:-** In case records of the relevant period are not available, secondary evidence in the form of 2 co-prisoner certificates (CPCs) from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification, of the claim and its genuineness, certifies that the documentary evidence from the official records in support of the claimed suffering are not available. In case the certifier happens to be a sitting or ex.M.P/M.L.A., only one certificate in place of the two is required. Where records of the relevant period are not available, a NonAvailability of Record Certificate (NARC) from the cornered authority could be considered as secondary evidence. The NARC should not be general or vague and should confirmed to the instructions issued by the Government of India, Ministry of Home Affairs. The instructions, inter-alia, require the State Governments to issue NARC only after due verification from all sources. The NARC is treated valid only when it is furnished by the State Government in the following manner.- "All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available." The claim of Central Samman Pension can be considered by the Central Government only when these are duly verified and W. A. No. 2213 of 2018 -11- recommended by the State Governments/Union Territory Administrations concerned in accordance with the provisions of the Scheme. As per the Scheme, the verification and recommendation report of the State Government is mandatory in view of the fact that the documentary evidence of the claims are in the possession of the State Governments/Union Territory Administrations and not of the Central Government. However, it is also mentioned that the Central Government has to keep all documents/reports/evidence in view and to take a decision strictly in accordance with the eligibility criteria and evidentiary requirements in the Central Scheme. A positive recommendation of the State Government is, therefore, not binding on the Central Government (if the claim does not satisfy the eligibility criteria and evidentiary requirements prescribed in the Scheme). 6. After examination of the claim, it is found that Smt. Chandramathy Sankunni, W/o (Late) Kelan Sankunni is not eligible for grant of Samman pension due to the following deficiencies/shortcomings:-, (i) The petitioner has not submitted an acceptable and valid Primary Evidence, duly verified by the State Government from its Office records. As per extant provisions of the SSS Pension Scheme, 1980, a person who claims for pension on account of jail suffering must produce Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Govt. indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release. The petitioner has failed to do so. The State Government W. A. No. 2213 of 2018 -12- has vide its letter No. 4225/FFP A2/2015/GAD dated 27.02.2015, informed as under- “The petitioner has produced the original extract of the imprisonment in Central Prison, Thiruvananthapuram for 3 months. But she could not, produce proof of her husband's Imprisonment in defunct Sub Jail Cherthala or 2 CoPrisoners Certificate as prescribed in the SSS Pension Scheme, 1980......” It is clear from the above observation of the State Government that the petitioner could not produce conclusive proof, as stipulated in the Scheme, to substantiate her husband's claimed Imprisonment Suffering, despite being given proper opportunity by the State Government. (ii) The petitioner has failed to produce acceptable and valid Secondary Evidence, duly verified by the State Government from its Office records. Though the petitioner has submitted a certificate from Shri. P.A. Solomon, EX MP, it is not acceptable in absence of Non Availability of Records Certificate. The Certificate is not in the proforma, prescribed under the Scheme. Moreover, the petitioner, as per the Scheme, is required to submit two CPCS but she has produced only one certificate, issued by Shri Solomon, who is an ineligible certifier as his own jail suffering is less than one year. (iii) The State Government has recommended the claim of the petitioner merely on the basis of the report of Tahsildar, whereas the Verification cum Entitlement to Pension Report is required to be based on a discreet enquiry of all the relevant office records of W. A. No. 2213 of 2018 -13- the Government authorities. Hence, the recommendation of the State Government is not acceptable. (iv) The State Government has while recommending the case to the Central Government relied upon the certificate, issued by the Tahsildar. But the Tahsildar in its said report has given following remarks:- “Though he was involved in P.E. 10/46 in connection with Punnapra Vayalar Struggle, he is not known punished.” (v) Though the State Government has recommended the claim for pension, it is not binding on the Central Government. The Hon'ble Supreme Court of India has vide Judgment dated 29.05.2012 in Civil Appeal No.4684 of 2006 filed by UOI vs. Pilli Ramachandran has stated- “In our view, the recommendation made by the State Government is not binding on the Central Government and it is open to the Central Government to make further enquiry, if so advised” 7. In view of the above, the claim of Smt. Chandramathy Sankunni, W/o Kelan Sankurini does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. 8. It is, therefore, regretted that Smt. Chandramathy Sankunni, W/o Kelan Sankunni is not eligible for grant of Samman pension under the Swatantrata Sainik Samman Pension Scheme, 1980. Hence, her claim is, hereby, rejected. W. A. No. 2213 of 2018 -14- 9. It is requested that this decision may please be communicated to Smt. Chandramathy Sankunni, W/o Kelan Sankunni, under intimation to this Ministry. 10. This issues with the approval of the competent authority. **==> picture [261 x 62] intentionally omitted <==** 6. It is thus challenging the legality and correctness of the said order the writ petition was filed. 7. In the counter affidavit filed by the 1[st] respondent, Ext. R1(a) SSS Pension Scheme dated 15.08.1981 is produced wherein the eligibility criteria is prescribed at paragraph 4, which reads thus:- “(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India; (b) The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1.8.1980. ## **EXPLANATION** 1. Detention under the orders of the competent authority W. A. No. 2213 of 2018 -15- will be considered as imprisonment.” 8. The sum and substance of the contention advanced by the 1[st] respondent on the basis of the said eligibility criteria is that appellant could not produce any evidence in contemplation of the provisions of the Scheme and whatever document produced by the appellant would only show that her husband suffered imprisonment in the movement only for a period of three months. Moreover, paragraph 9 of the Scheme deals with the manner in which the claim is to be proved. It reads thus:- “The applicant should furnish the documents indicated below whichever is applicable :- ## (a) IMPRISONMENT/DETENTION ETC. Certificate from the concerned jail authorities, District Magistrates or the State Government in case of non- availability of such certificates co-prisoner certificates from a sitting M.P. or M.L.A. or and ex-M.P. or ex-M.L.A specifying the jail period." 9. Therefore, it is submitted that the appellant has failed to produce any evidence to establish the claim to secure pension under the provisions of the Scheme. W. A. No. 2213 of 2018 -16- ## 10. The learned Single Judge, after taking into account the rival submissions, has held as follows:- “4. It is by now well established that the criteria for determining the eligibility of grant of freedom fighter's pension under the State scheme and the Central scheme are different and, merely because Ext.P-7 would have been treated as acceptable for the purpose of grant of pension under the State scheme as per Ext.P-3 to the claimant, is no ground to contend that Ext.P-7 should be accepted with equal force in the case of the Central scheme as well. The Central scheme insists for primary evidentiary material to prove the claimed actual jail sufferings by producing the authenticated extracts of the jail register, which should be certified by the competent State authority as genuine, after verification with the original or the claimants are also given the liberty to produce the secondary evidentiary material like coprisoner's certificate. In the instant case, the petitioner does not have a case that she could produce any secondary evidentiary material like co-prisoner's certificate. What is available is only Ext.P-1, which is stated to be the extract of the jail register of the Central Prison, Thiruvananthapuram. So long as there is no acceptable material to show that the petitioner's husband had actually suffered imprisonment, not only for the period covered by Ext.P-1 (one and a half months) but also for a period so as to fulfill the requirement of the minimum six months' imprisonment period, it cannot be said that the petitioner has established her case in terms of the Central scheme. Therefore, the 1st respondent Union Government cannot be faulted for having taken W. A. No. 2213 of 2018 -17- the view in Ext.P-12 proceedings that the petitioner has not been able to establish her claim on the basis of the criteria laid down in the Central scheme. In that view of the matter, it is only to be ordered that the petition is devoid of any merit and accordingly, the above Writ Petition (Civil) will stand dismissed.” 11. It is thus challenging the legality and correctness of the judgment of the learned Single Judge, the appeal is filed. 12. The sole question to be considered is whether any manner of interference is required to the judgment of the learned Single Judge. 13. Admittedly, the claim of the petitioner is rested on Ext. P7 certificate issued by the Tahsildar dated 25.11.1971 stating that Sri. Kelan Sankunni has suffered detention for nine months. However, going by the provisions of the Central Scheme, it does not contemplate a certificate of the Tahsildar in order to provide pension as per the Scheme. Appellant has also failed to produce any certificate from the co-prisoners or from the persons who are entitled to issue such certificates having suffered imprisonment for five years. It was in the above said background that the Government of India has declined the claim raised by the appellant. Moreover, in the recommendation made by the State Government as per Ext. P11 extracted above, it is clear W. A. No. 2213 of 2018 -18- that there is no sufficient proof to establish that the appellant’s husband had undergone imprisonment for a period more than six months. 14. The learned counsel for the appellant has invited our attention to the judgment of the Hon’ble Apex Court in **Gurdial Singh** **v. Union of India and Others [(2001) 8 SCC 8]** and submitted that the Hon’ble Apex Court had considered the question and held that the standard of proof in the case of freedom fighters pension need not be proved beyond reasonable doubt and it need only be probabilized that the claimant had suffered imprisonment for the cause of the country during the freedom struggle and a presumption is required to be drawn in his favour, unless the same is rebutted by cogent, reasonable and reliable evidence. 15. However, on an appreciation of the facts and circumstances and the material available on record, we are of the undoubted opinion that the appellant has failed to establish that her husband has suffered imprisonment for more than six months in order to claim the benefits of the SSS Pension Scheme for the reasons assigned above. 16. Therefore, we are of the opinion that the learned Single W. A. No. 2213 of 2018 -19- Judge has exercised the discretionary power, in accordance with law, taking into account the attendant facts, circumstances and the law. Accordingly, we are of the view that the appellant has not made out any case of jurisdictional error or other legal infirmities justifying our interference in an intra court appeal filed under Section 5 of the Kerala High Court Act, 1958. Needless to say, appeal fails. Accordingly it is dismissed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE