Edavankorath Narayanan Nambiar v Union of India

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 4[TH] DAY OF JULY 2023 / 13TH ASHADHA, 1945 ``` ## **`WP(C) NO. 22667 OF 2010`** ## **`PETITIONERS:`** ``` EDAVANKORATH NARAYANAN NAMBIAR NEDIYANGA, KAVUMBHAI, KOTTUMUGHAM, SREEKANDAPURAM, KANNUR DISTRICT. ``` ``` BY ADV SRI.O.D.SIVADAS ``` ## **`RESPONDENTS:`** ``` 1UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, F.F.DIVISION, NEW DELHI. 2THE SECRETARY TO GOVERNMENT FREEDOM FIGHTERS DIVISION, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, NEW DELHI. ``` ``` 3THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, GENERAL ADMINISTRATION (FFP.A)DEPARTMENT, THIRUVANANTHAPURAM. ``` ``` BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.S.KRISHNAMOORTHY CGC SRI.T.P.M.IBRAHIM KHAN ASST.S.G OF INDIA MANU S., DSG OF INDIA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.P(C).22667/2010**_ 2 ## J U D G M E N T Dated this the 4[th] day of July, 2023 1. Proceedings of the Central Government dated 13.4.2010 Ext.P12 rejecting the application of the petitioner for Swatantrata Sainik Samman Pension have been assailed in the present writ petition. 2. Petitioner is claiming to be a freedom fighter, participated in the Kavumbhai struggle, which was recognised by the Central Government as per order dated 20.1.1998. From 30.11.1946 to 23.10.1947 on account of the participation in the struggle, remained underground and in jail from October 1947 to July 1953. Petitioner was charged with sections 147, 148, 326, 332, 333, 307, 302 and 149 of Indian Penal Code. Calicut Sessions Court of South Malabar tried the case, was sentenced to undergo imprisonment of 19 years for different charges. After conviction, was transferred to sub Jail Vellore and thereafter, to Central Jail, Selam **.** During 1952 petitioner was again transferred to Sub Jail Cananore. In order to avail the benefit of SSS Pension, submitted an application Ext.P3 and produced co-prisoner's _**W.P(C).22667/2010**_ 3 certificate and also Non-availability of Records Certificate (NARC) issued by superintendent of Sub Jail Kannur explaining the non availability of relevant record. The certificate of co-prisoners certified that the petitioner remained underground from 30.11.1946 to 23.10.1947 and later, was arrested and convicted. The said certificate is Ext.P4. 3. It was, thus, contended that rejection was only on the ground that Kavumbhai struggle was not recognised, which is wholly capricious. The documents produced by the petitioner along with application would clearly establish that the petitioner was a freedom fighter and entitled to get Swatantrata Sainik Samman (SSS) Pension. Once the State Government had certified and recommended the case, there was no reason for the Central Government to reject the application. 4. On the other hand, learned counsel representing the respondents 1 and 2-Central Government opposed the claim and submitted that rejection was on the premise that petitioner did not furnish any primary evidence to substantiate the claim of sufferings and also for not furnishing of Non-availability of Records Certificate (NARC) from the State Government. The _**W.P(C).22667/2010**_ 4 submission of NARC from the Superintendent of Sub Jail, Kannur was rejected as it was not as per the provisions of the Scheme. The recommendation of the State Government was not based on any evidence and accordingly rejected after taking into consideration the provisions of 1980 Scheme. However, in paragraphs 3 and 5 of the counter affidavit, it was stated that inadvertently pension was sanctioned for different periods amounting to Rs.3000/- and 6330/-, which was sought to be recalled by sending the request to the Pay & Account Office (Pension & Miscellaneous) as well as communication to District Collector, Kannur, Kerala. 5. I have heard learned counsel for the parties and appraised the paper book. 6. Paragraphs 3 to 5 of the counter affidavit of respondent Nos.1 and 2 reads as under: 3. That as per the directions of Hon'ble High Court, Central Government has sanctioned the pension to the Petitioner as per letter dated 04[th] October, 2010. 4. As per above letter the Petitioner has been granted Pension, @ Rs. 3000/ (Rupees Three thousand Only) per month from 02.08.1999 to 14.08.2005, @ Rs. 4000/(Rupees Four Thousand only) per month from 15.08.2005 to _**W.P(C).22667/2010**_ 5 01.10.2006 and @ Rs. 6330/- (Rupees Six thousand three hundred thirty only) per month from 02.10.2006 onwards plus Dearness Relief at the rates admissible from time to time to Shri Edavan Narayanan Nambiar, S/o late Raman Nambiar, Nedungome, P.O. Nedungome(via) Sreekandapuram, Kannur District, Kerala. (Annexure I). 5. The Pension will be for the life time and would be in addition to pension if any, sanctioned by the State Government. This sanction will be subject to review by the president. In particular, it is liable to cancellation/modification without any notice if it is found that it was sanctioned on mistaken ground/false information. The Government has also the full right to the recovery of the wrongly drawn pension in case the pension is cancelled. 6. A copy of letter has already been sent to "The Pay & Account Office (Pension & Misc.)", Petitioner and to the District Collector, Kannur, Kerala. 7. That in view of the above situation, the present writ petition is infructuous and is liable to be disposed of.” ## 7. Paragraphs 5 to 8 of the impugned communication reads as under: “5. After examination of the claim, it is found that Shri Edavankoroth Narayanan Nambiar is not eligible for grant of pension due to the following shortcomings /iscrepancies: - i. The petitioner has not furnished any primary evidence to substantiate the claimed suffering. No Primary evidence has been furnished to corroborate either the jail or the underground suffering. - ii. The petitioner has not furnished the NARC from the _**W.P(C).22667/2010**_ 6 State Government. The Non Availability of Records Certificate (NARC) from Superintendent, Sub Jail, Kannur is not acceptable under the provisions of the Scheme. Moreover, the said certificate is general one, stating that the records of certain period are not available. It does not state that the records pertaining to the petitioner's claim have been destroyed. Therefore, it cannot be termed as specific NARC in support of the petitioner. - iii. In absence of valid NARC, the CPC submitted by the petitioner cannot be considered. The CPC from Shri Kannoth Kunjambu has, however, been scrutinized. The petitioner has not furnished the jail records to establish the jail suffering of the certifier for a period of at least 1 year. Thus the CPC is not acceptable as the certifier has not furnished any record/evidence of his own jail suffering of minimum one year (i.e.. he has furnished no evidence to establish that he is eligible certifier). - iv. The petitioner has not furnished any primary or secondary evidence to substantiate his claimed suffering. - v. The Government of Kerala has recommended the claim of the petitioner. However, the recommendation of the State Government is not based on any evidence. As such it is not acceptable. Further, the recommendation of the State Government is only advisory in nature and is not binding upon the Central Government. The recommendation of the State Government is not based on any valid ground and, as _**W.P(C).22667/2010**_ 7 ## such, the same cannot be acceded to. 6. In view of the above, the claim of the petitioner does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. 7. lt is, therefore, regretted that it is not possible to accept his claim for grant of Samman pension under the Swatantrata Sainik Samman Pension Scheme. Hence the same is, hereby, rejected. The petitioner may be informed of the decision accordingly. 8. This issues with the approval of the competent authority.” 8. On perusal of the reasoning in the counter affidavit as well as impugned order, both contentions seems to be contradictory inasmuch as that on one side, case of the petitioner has been rejected on the ground that he did not furnish any primary evidence or NARC from the Superintendent of Sub Jail, Kannur, as required under the provisions of the Scheme, but in the other breath, pension was released. The conditions for eligibility and submission of application prescribed in the Swatantrata Sainik Samman (SSS) Pension scheme reads as under: ## “ **WHO IS ELIGIBLE** : For the purpose of grant of Samman Pension under the scheme, a freedom fighter is:- (A) a person who had suffered minimum imprisonment of six months in the mainland jails before independence. Ex- _**W.P(C).22667/2010**_ 8 INA personnel are also eligible for pension if the imprisonment/detention suffered by them was outside India for six months or more. In case of women and SC/ST freedom fighters the minimum period of actual imprisonment for eligibility of pension is three months. ## **Explanation** : Detention under the orders of the competent authority will be considered as imprisonment. - (i) Period of normal remission upto one month will be treated as part of actual imprisonment. - (ii) In case of a trial ending in conviction, under trial period will be counted towards suffered. - (iii) Broken period(s) of imprisonment will be totalled up for computing the qualifying period. - (iv) A person who was sentenced for imprisonment for six months or more, but was released prematurely on account of general amnesty and not on account of tendering apology/furnishing a bond or undertaking for good behavior will be treated as eligible for pension. (B) A person who remained underground for six months or more provided he was: - i) a proclaimed offender - ii) one on whom an award for arrest/head was announced; or - iii) one whose detention order was issued but not served. ## **Explanation** : _**W.P(C).22667/2010**_ 9 Voluntary underground suffering or self-exile, suffering for party work under the command of the party leaders are not recognized for consideration for grant of Samman Pension. (C) a person who was intermed in his home or externed from his district under the orders of the competent authority for six months or more. (D) a person whose property was confiscated or attached and sold due to participation in the national freedom struggle under the orders of the competent authority. (E) a person who was permanently incapacitated during firing or lathi charge. (F) a person who lost his Government job (Central or State Government, including job in local bodies) and thus deprived of means of livelihood for participation in the National Freedom Struggle. (G) a person who was awarded the punishment of ten strokes of caning/flogging/whipping. ## **HOW TO APPLY** Persons, who consider themselves eligible for Samman Pension under the Scheme, should apply in duplicate, on the prescribed application form. One form, duly filed and supported by required documents as proof of claim of suffering, should be sent to the Chief Secretary of the concerned State Government/Union Territory Administration. The second copy should be sent to the Deputy Secretary to the Government of India, Ministry of Home Affairs, Freedom Fighter Division, NDCC-II Building, Jai Singh, Road, New Delhi-110001 as an advance copy. _**W.P(C).22667/2010**_ 10 ## **AVAILABILITY OF APPLICATION FORMS** Application forms (ANNEXURE-III) can be obtained from either of two offices i.e. State Government/Union Territory Administration concerned or Freedom Fighters & Rehabilitation Division, FF(P) Section, MHA, NDCC-II Building, Jai Singh Road, New Delhi-110001 as an advance copy. ## **HOW TO PROVE CLAIMS (EVIDENCE REQUIRED)** The applicants should furnish the documents indicated below, whichever is applicable, in order to prove his/her claimed sufferings for grant of pension under the scheme. ## **(A) IMPRISONMENT/DETENTION:** Certificate from the concerned jail authority, District Magistrate or the State Government, indicating period of sentence awarded, date of admission, date of release and reasons for release. In the absence of such certificates from official records, a Non Availability of Records Certificate (NARC) from the concerned authorities along with Co-Prisoners' Certificates (CPC) as under: - i) Two Co-prisoners' Certificates from the freedom fighter pensioners who had a proven jail suffering of one year. - Or - ii) One Co-prisoners' Certificate from sitting MP or MLA or from an ex-MP or ex-MLA specifying his jail period and that of the applicant (ANNEXURE-IV). (B) Documentary evidence by way of Court's/Government's orders proclaiming the applicant as _**W.P(C).22667/2010**_ 11 an offender, announcing an award on his head or for his arrest ordering his detention. In the absence of such certificates from official records, a Non-availability of Records Certificate (NARC) from the concerned authorities along with a Personal Knowledge Certificate from a prominent freedom fighter who had undergone imprisonment for a period of at least two years or more. ## **(C) INTERNMENT OR EXTERNMENT:** Order of internment or externment issued by the competent authority from the official records. In the absence of official records, a Non-availability of Records Certificate (NARC) from the concerned authorities along with a Personal Knowledge Certificate from a prominent freedom fighters who had themselves undergone suffering of imprisonment for two years or more (ANNEXURE-V). ## **Explanation** : The certifying freedom fighters in respect of underground suffering, internment/externment, and the applicant should belong to the same administrative district before reorganization of the States and the area of operation must be the same. ## **(D) LOSS OF PROPERTY, JOB ETC** . : Orders of confiscation and sale of property, orders of dismissal or removal from service for taking part in the National Freedom Struggle. _**W.P(C).22667/2010**_ 12 ## **Explanation** : Persons whose property was restored and persons who were reinstated in service before a period of two years from their dismissal or removal from service and were in receipt of benefits or pay & allowances are not eligible for pension. ## E) **PERMANENT INCAPACITATION:** - i) Certificate from the District Magistrate stating that permanent incapacitation was done by bullet injury/lathi charge sustained during participation in the National Freedom Struggle. - ii) Medical Certificate from the Civil Surgeon in support of the handicap. ## (F) **PUNISHMENT OF 10 STROKES OF CANING/FLOGGING/WHIPPING:** Copies of orders passed by the competent authority from the official records. (G) **MARTYRDOM** :- Evidence from official records or news papers of the relevant time in support of getting killed in action or in detention etc.” 9. No doubt, the petitioner does not fulfill the provisions of the Scheme for entitlement of the pension, but the fact remains that NARC has to be issued by a sitting MP/MLA or Ex-MP/ExMLA specifying his jail period and that of the applicant. Certificate of a prisoner is not the requirement, but the fact _**W.P(C).22667/2010**_ 13 remains that petitioner has been given pension. I am of the view that pension sanctioned cannot now be recovered at this fag-end of his life. For the reasons aforementioned, writ petition is dismissed with a further observation that pension may not be recovered from the petitioner. Sd/AMIT RAWAL, JUDGE sou. _**W.P(C).22667/2010**_ 14 ## **`APPENDIX OF WP(c) No.22667/2010`** ## `PETITIONER EXHIBITS` ``` EXHIBIT -P1TRUE COPY OF THE PROCEEDINGS DATED 26.6.1989 EXHIBIT -P2TRUE COPY OF THE PROCEEDINGS No.6/1/97- FF(P) DATED 20.1.1998 ISSUED BY THE GOVERNMENT OF INDIA EXHIBIT -P3TRUE COPY OF THE APPLICATION DATED 28.9.1998 SUBMITTED BY THE PETITIONER EXHIBIT -P4TRUE COPY OF THE CO-PRISONER CERTIFICATE DATED 16.3.1998 EXHIBIT -P5TRUE COPY OF THE CERTIFICATE DATED 4.3.1999 ISSUED BY THE SUPERINTENDENT, SUB JAIL, KANNUR EXHIBIT -P6TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR DATED 27.7.2000 EXHIBIT -P7TRUE COPY OF THE PROCEEDINGS DATED 20.9.2000 ISSUED BY THE 3RD RESPONDENT EXHIBIT -P8TRUE COPY OF THE PROCEEDINGS DATED 28.12.2001 ISSUED BY THE 3RD RESPONDENT EXHIBIT -P9TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR DATED 2.7.2003 EXHIBIT -P10TRUE COPY OF THE COMMUNICATION DATED 22.7.2003 ISSUED BY THE 3RD RESPONDENT EXHIBIT -P11TRUE COPY OF THE JUDGMENT IN WP©.1960/2010 DATED 20.1.2010 ``` _**W.P(C).22667/2010**_ 15 ``` EXHIBIT -P12TRUE COPY OF THE PROCEEDINGS OF THE CENTRAL GOVERNMENT DATED 13.4.2010 ``` ``` RESPONDENT’S EXHIBITS ``` ``` EXHIBIT -P6PHOTOCOPYOFTHELETTER No.52/CC/K/63/2009-FF(SZ) DATED 4.10.2010 ```