K. Bhaskaran v. State of Kerala & Others (W.P.(C) No. 136 of 2005)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930** **WP(C).No. 136 of 2005(N)** **-------------------------------------** **PETITIONER:** **---------------------** **K.BHASKARAN, KULAKKADA VEEDU, MARUTHOORKULANGARA SOUTH, ALUMKADAVU P.O. KARUNAGAPPALLY, KOLLAM DIST.** **BY ADV. SRI.N.DHARMADAN (SR.) SMT.R.RANJINI** **RESPONDENTS:** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION (FFP B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, KOLLAM.** **3. DISTRICT ADVISORY COMMITTEE, REPRESENTED BY ITS CHAIRMAN, DISTRICT COLLECTOR, COLLECTORATE, KOLLAM.** **4. THE TAHSILDAR, TALUK OFFICE, KARUNAGAPPALLY.** **BY GOVERNMENT PLEADER SRI.R.LAKSHMINARAYANAN- R1 TO R4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.136/2005 N** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF APPLICATION DTD. 14/12/99 BY THE PETITIONER. EXT.P2(A): COPY OF CO-PRISONER CERTIFICATE DTD. 12/10/99 ISSUED BY SRI.K.GOPINATHAN TO THE PETITIONER. EXT.P2(B): COPY OF CO-PRISONER CERTIFICATE DTD. 10/10/99 ISSUED BY SRI.UMMINI RAGHAVAN TO THE PETITIONER. EXT.P2(C): COPY OF CO-PRISONER CERTIFICATE DTD. NIL ISSUED BY SRI.S.KUMARAN TO THE PETITIONER. EXT.P3: COPY OF NARC DTD. 21/12/1999 ISSUED FROM THE 1ST CLASS MAGISTRATE COURT, KARUNAGAPPALLY. EXT.P4: TRUE EXTRACT OF ADMISSION REGISTER OF THE PETITIONER ISSUED BY THE HEADMASTER, PALAKKAL MUSLIM LPS, THEVALAKKARA. EXT.P5: COPY OF PETITION DTD. 21/12/2000 FILED BY PETITIONER AND OTHERS BEFORE THE 2ND RESPONDENT. EXT.P6: COPY OF LETTER NO.98223/FFP-B3/2001/GAD DTD. 11/01/2002 ISSUED BY 1ST RESPONDENT. EXT.P7: COPY OF JUDGMENT IN O.P.14585/02 DTD. 19/06/03 OF THIS HON'BLE COURT. EXT.P8: COPY OF ORDER NO.75014/FFP-B3/2003/GAD DTD.10/11/2003 ISSUED BY 1ST RESPONDENT. EXT.P9: COPY OF MINUTES HELD ON 21/10/2000 (RELEVANT PORTION).** ## **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** ## **P.S.TO JUDGE** _Kss_ ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) NO.136 of 2005-N** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 23rd day of July, 2008.** ## **JUDGMENT** The petitioner has approached this court challenging Ext.P8 order passed by the Government rejecting his application for grant of Freedom Fighters Pension under the State Scheme. He had approached this court earlier and by Ext.P7 judgment, this court has directed the authorities to conduct a fresh enquiry after hearing the petitioner also. Thereafter, the Tahsildar conducted an enquiry and finally the Government rejected the application as per Ext.P8. 2. The petitioner, as per Ext.P1 application, sought for sanction of the pension. His case as shown in the application is that he was kept in the Kollam Kasba Police lockup in connection with the attack of the police station, Karunagappally between 8[th] of Meenam 1114 and 10[th] of Kanni, 1115. The co-prisoners' certificates produced by the petitioner are Exts.P2 (a) to P2(c) by Shri K. Gopinathan, Ummini Raghavan and Shri K. Sukumaran. All of them are certified that the petitioner was jailed along with them in connection with the same incident in the Kollam Kasba Police lockup. WPC 136/2005 -2- 3. Under Ext.P8, the above certificates have been discarded mainly for two reasons. One is that the certifiers did not have the minimum required imprisonment suffering for one year. The second thing is that the name of the movement in which the petitioner had participated, had not been mentioned in the certificate issued by the certifiers. 4. Mainly the said reasons appears to be unsupportable. Ext.P2(a) is the certificate issued by Shri K. Gopinathan. He is a recipient of Central Freedom Fighters Pension under the Ministry of Home Affairs Order No.19/1/Gen/PFFVI dated 12.10.1972. It is further stated by him that he had actually suffered imprisonment for more than two years in the freedom struggle and was lodged in Kollam Kasba Lockup and Trivandrum Central Jail. He has clearly certified that the petitioner was imprisoned on account of his participation in the Kollam Kasba Lockup in C.C.No.36/1114 movement during the freedom struggle. Ext.P2(b) certificate shows that Shri Ummini Raghavan is a recipient of Central Freedom Fighters Pension under the Ministry of Home Affairs Order No.BZ/19/1484/73-FF VIII dated 31.3.1982. He is a person who had undergone imprisonment for more than 5 years. The imprisonment of the petitioner is clearly stated in the said certificate also. The third certifier is Shri K.Sukumaran as per Ext.P2(c) and he is a recipient of Central Freedom Fighters Pension under the Ministry of WPC 136/2005 -3- Home Affairs Order No.19/1/G/7-3 FF VIII dated 19.5.1973. He has also certified about the period of imprisonment of the petitioner. 5. It is not disputed in Ext.P8 that these three well known freedom fighters are not recipients of Central Pension. Indisputably, grant of SSS Pension to them is after considering their imprisonment in the freedom struggle. Therefore, merely because the petitioner has not produced the certificates showing their period of imprisonment, the respondents ought not have rejected the certificates on that ground. The finding that their certificates are not acceptable, since they did not have the minimum required imprisonment of one year, is therefore not sustainable. The other reason is that the movement in which the petitioner had participated, had not been mentioned in the certificate. That the incarceration of the petitioner was in connection with the freedom struggle, is clearly mentioned in the certificates. Further, the national freedom struggle was for the independence of the Country and it cannot be said that to make a person eligible for the pension, his participation should be in connection with a particular named movement. The petitioner's imprisonment was in connection with the criminal case, viz. C.C.No.36/1114 and all the three freedom fighters who are competent certifiers, have certified that it was in connection with the freedom struggle. Therefore, plainly the rejection of the application is not WPC 136/2005 -4- justified. 6. In similar cases the certificates issued by Shri K. Gopinathan and Shri Ummini Raghavan have been accepted by this court. Reference is made to the judgment in O.P.No.11264/2003. Therein, the rejection was on the ground that the certificates of these certifiers along with that of Shri P.K. Bhaskaran are not acceptable. In paragraph 2, while referring to the said aspect, it was held in the following terms: “However, in Ext.P10 produced by the petitioner, along with the reply affidavit filed by her, it is seen that the first respondent had, in case of another freedom fighter, relied on the certificates from M/s. K. Gopinathan and Ummini Raghavan to grant freedom fighters' pension to the person covered by Ext.P10. It is also seen from Exts.P4, P4(a) and P4(b) that this court had categorically found that the certificates given by the persons whose certificates are filed in support of the application for the petitioner as acceptable certificates for the purpose of granting freedom fighters' pension.” Therefore, I am of the view that the certificates issued by the certifiers, viz. Shri K. Gopinathan and Shri Ummini Raghavan can be accepted as far as the claim of the petitioner is concerned and the eligibility of the said certifiers need not be established afresh. In that view of the matter also, I find that the rejection of the application was totally improper. 7. The stand taken in the counter affidavit is that the application of WPC 136/2005 -5- the petitioner is not supported by primary evidence in the form of jail certificates of the petitioner and that of the certifiers. This is based on the circular dated 31.12.1993 (No.57183/FFP B1/93/GAD). In the said circular, it has been made clear that all the applications/appeal petitions/review petitions for Kerala Freedom Fighters Pension received after 31.3.1994 will be considered only on production of documentary evidence from official records such as copy of the arrest warrant/court/jail records clearly showing the applicant's sufferings in the freedom struggle. Apparently, this is the reason for not relying upon the co-prisoners' certificates. As held by the Apex Court in **Mukundlal Bhandari v. Union of India and others** (AIR 1993 SC 2127), any time limit fixed in the Scheme or circular shall not be treated as a rigid time limit while considering the application for grant of Freedom Fighters Pension. It can be regarded only as a matter of administrative convenience.” Apart from that, as per the original scheme, if the applicant is unable to produce primary evidence in the form of jail certificates, etc., the certificates issued by co-prisoners are acceptable. A circular cannot go against the provisions of the statute, rules, scheme, etc. and the express provisions of the scheme cannot be whittled down by the terms of a circular. The Apex Court in **Gurdial Singh v. Union of India and others** {(2001) 8 SCC 8} has held WPC 136/2005 -6- that an application for grant of Freedom Fighters Pension cannot be rejected on the ground that copies of official records have not been produced and what is required is only the proof showing the genuineness of the claim and the evidence cannot be appreciated like a criminal case or a civil proceeding. The observations of the Apex Court in para 7 of the judgment are relevant here and the same are extracted below: “The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of “beyond reasonable doubt”. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour WPC 136/2005 -7- unless the same is rebutted by cogent, reasonable and reliable evidence.” In that view of the matter also, I find that the approach made by the respondents as regards the claim of the petitioner, is unjustified. All these certificates, viz. Exts.P2(a) to P2(c) have been issued by competent certifiers who are recipients Central Freedom Fighters Pension. 8. Therefore, Ext.P8 is quashed. It is declared that the petitioner is eligible to be granted the pension under the Kerala Freedom Fighters Pension Scheme. Appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**