Kelothu Valappil Kunhathi 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. 14385 of 2011 (W) ----------------------------** **PETITIONER:** **-----------** **SMT.KELOTHU VALAPPIL KUNHATHI, W/O.NARAMBAN KORAN, KELOTHU VALAPPIL, KOOTTUMUGHAM P.O., SREEDANDAPURAM, KANNUR DISTRICT.** **BY ADV. SRI.O.D.SIVADAS** |**RESPONDENT(S):**|**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-110 001.**| |**2.**|**THE UNDER SECRETARY TO GOVERNMENT OF**| ||**INDIA, MINISTRY OF HOME AFFAIRS,**| ||**FREEDOM FIGHTER'S DIVISION,**| ||**LOK NAYAK BHAVAN, KHAN MARKET,**| ||**NEW DELHI-110 001.**| |**3.**|**THE PRINCIPAL SECRETARY TO GOVERNMENT**| ||**OF KERALA, GENERAL ADMINISTRATION (FFP.B)**| ||**DEPARTMENT, THIRUVANANTHAPURAM-695 001.**| ||**R1 & R2 BY SRI.N.NAGARESH,ASSISTANT SOLICITOR GENERAL**| ||**SRI.S.KRISHNAMOORTHY, CGC**| ||**R3 BY SENIOR 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: mbr/** ## **WP(C).No. 14385 of 2011 (W) ---------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT. P1 : TRUE EXTRACT OF THE UNDER TRIAL REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL, KANNUR.** **EXT. P2 : TRUE EXTRACT OF THE CONVICTION REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL, SALEM.** **EXT. P3 : TRUE COPY OF THE PROCEEDINGS DATED 15.4.983. EXT. P4 : TRUE COPY OF THE PROCEEDING NO.6/1/97-FF(P) DATED 20.1.1998 ISSUED BY THE GOVERNMENT OF INDIA.** **EXT. P5 : TRUE COPY OF THE PROCEEDINGS DATED 17.9.1998 OF THE CENTRAL GOVERNMENT.** **EXT. P6 : TRUE COPY OF THE ORDER DATED 14.2.2011 ISSUED BY THE CENTRAL GOVERNMENT.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1A: TRUE COPY OF THE SALIENT FEATURES OF SWATANTRATA SAINIK SAMMAN PENSION SCHEME, 1980.** **//TRUE COPY//** **P.S. TO JUDGE** ## **mbr/** ## **P.V.ASHA J.** ## **--------------------------------------------** ## **W.P.(C).No.14385 of 2011** **---------------------------------------------** Dated this the 16[th] day of December, 2016 ## **J U D G M E N T** According to petitioner, her husband was a freedom fighter. He had participated in the Kavumbhai struggle and was arrested by the Police in connection with the same and he underwent imprisonment for the period from 22.02.1947 to 21.07.1947 as under trial prisoner in Central Jail, Kannur. On conviction in C.C.No.57/47 by the Second Class MagistrateThaliparambu, he continued under imprisonment for the period from 21.07.1947 to 02.11.1947 as a convict. He was tried for offences under Sections 147 and 323 of IPC and was sentenced for rigorous imprisonment. Producing Exts.P1 and P2 extract from the under trial register as well as the convict register issued by the Superintendent of Central Jail, Kannur, petitioner's husband had submitted application for Swantantrata Sainik Samman Pension (for short 'SSS Pension'). It was initially rejected as per Ext.P3 letter dated 15.04.1983 on the ground that movement in which he underwent imprisonment namely Kavumbhai struggle, was not recognised as part of national freedom movement. Later when Government recognised Kavumbhai struggle for the purpose of 2 ## **W.P.(C).No.14385 of 2011** grant of SSS Pension, as per Ext.P4 order dated 20.01.1998, application was again submitted. By Ext.P5 letter dated 17.09.1998, the Government of Kerala was requested to verify the claim of the suffering of petitioner's husband with reference to the official records and called for specific recommendation to the Ministry. Thereupon, petitioner approached this Court in W.P.(C).No.12465 of 2010 and on the basis of the directions contained therein the State Government forwarded their recommendations and thereafter the Government of India considered the same and they rejected the claim of the petitioner as per Ext.P6 order on the ground that petitioner did not submit any acceptable record-based primary evidence, duly verified by State Government; period of jail suffering was less than six months (21.07.1974 to 02.11.1947); the sections of IPC under which her husband was tried do not prove to be jail suffering related to freedom movement. Further it was stated that State Government had recommended the application of the petitioner merely on the basis of the direction issued by this Court, without giving any reason and without making any enquiry as to the participation of applicant's husband. Therefore the application was rejected stating that her claim does not fulfil eligibility criteria and evidentiary 3 ## **W.P.(C).No.14385 of 2011** requirements of SSS Pension. ## 2. Ext.P6 itself points out the recommendations made by State Government as follows: _“_ Accordingly the claim of the petitioner viz Smt. Kelothu Valappil Kunhathi for Swatantrata Sainik Samman dependent pension has been examined with reference to the report of the District Collector, Kannur and that of the Superintendent, Central Prison, Kannur. The Superintendent, Central Prison, Kannur as per his letter 3[rd] cited has reported that as per the Jail records the late husband of the petitioner viz Naramban Koran had not seen admitted in that Jail. He has further informed that due to the efflux of time, the jail records during the period of freedom struggle are worn out and the recorded facts are not clear and hence it is not possible to identify the convict person.” “The District Collector, Kannur as per his letter 4[th] cited has reported that the application for Swatantrata Sainik Samman Pension was got enquired through the Tahsildar, Taliparamba that the local enquiry conducted by him shows that Shri. Naramban Koran, late husband of the petitioner was involved in freedom struggle and he was a recipient of Kerala Freedom Fighters Pension. The petitioner has produced unattested copy each of the U.T.No.698/convict register No. 6368 which shows that her late husband was an under trial prisoner for the period from 22.2.1947 to 21.7.1947 and convicted for the period from 21.7.1947 to 2.11.47 as convict No. 6368. Later he was transferred to Central Jail, Vellore on **W.P.(C).No.14385 of 2011** 4 2.11.47. This period is above 6 months (including U.T. period). As per the Jail certificates produced by the petitioner, her late husband had suffered Jail imprisonment for more than 6 months (including trial period) and is eligible for Swatantrata Sainik Samman Dependent family pension as per the provisions of the Swatantrata Sainik Samman Pension Scheme, 1980.” 3. It is clear that the extract of the prison register was verified by the State Government through the Superintendent of Central Prison as well as the District Collector who stated that due to the efflux of time the jail records were worn out and it was not possible to identify the convicted persons. On enquiry made through the District Collector, it was reported that the petitioner's husband was a participant in the freedom movement and had undergone jail suffering. 4. The respondents 1 and 2 have filed counter affidavit in tune with Ext.P6 order stating that the certificates produced in support of the claim were not verified by the State Government. According to them when the certificate itself was produced and it could not be verified there should be two certificates from the co-prisoners apart from non availability records certificate from the concerned State Government along with Personal Knowledge Certificate from two persons with proven jail sufferings for a minimum period of 2 years and who 5 ## **W.P.(C).No.14385 of 2011** happened to be from the same administrative district. Since those records were not available, the claim of the petitioner could not be entertained. 5. In Ext.P6 as well as the counter affidavit of the respondents, it was stated that, petitioner's husband did not have six months imprisonment. But it is seen that the respondents have considered the certificate for the period after conviction alone. The petitioner had submitted two separate extracts from the under trial prisoners' register as well as convicts' register for the period from 22.02.1947 to 21.07.1947 and from 21.7.1947 to 2.11.1947. Therefore, it cannot be said that there was any deficiency in the period of imprisonment. The second deficiency pointed out is that there is no acceptable record-based primary evidence, duly verified by State Government. The records Exts.P1 and P2 i.e., the extract of the jail registers are primary evidences and it is verified by the State Government. The letter of Govt reveals the report received from the Superintendent of Jail informing the nonavailability of records to verify, on account of the efflux of time and hence the certificates could not be verified with reference to the original. But it is seen that the District Collector has made enquiries and found that petitioner's husband has 6 ## **W.P.(C).No.14385 of 2011** participated in the freedom movement. 6. Apart from that the learned counsel for the petitioner submits that the petitioner's husband was Tamrapatra holder, though there is no such averment in the writ petition. At any rate it is seen that Government have recommended the claim of the petitioner and recommended the matter only after verification . 7. Learned counsel for the respondents 1 and 2 argued that the documents Exts.P1 and P2 alone cannot be relied on for grant of SSS Pension, relying on the judgment of this Court in **Sainaba v. Union of India** [2006 (1) KLT 654]. There this Court held that when the certificates are not forthcoming, applicant has to obtain a Non Availability Record Certificate and has to independently fulfil the criteria laid down under the central scheme. But it is relevant to note that even in this judgment what this Court held is that as far as the central rules are concerned the applications should be scrutinized in consultation with the State Advisory Board on the basis of the copy of the application and evidence should be produced in accordance with paragraph 9 of the central scheme. In this case, the State Government has already certified that there is no record available in the jail regarding the imprisonment of 7 ## **W.P.(C).No.14385 of 2011** the petitioner's husband or the original of the register. When the State Government has verified it and reported to the central government that the originals are not available and the petitioner has produced the extract of the registers, further requirement would not be there to produce any further evidence in support of the jail sufferings, when all the details regarding the case number, offences and the period of suffering are contained in the extract of the jail register. 8. Under the above circumstances, the rejection of the application of the petitioner cannot be held to be legal. The judgment of the Division Bench referred to by the learned counsel for the respondents does not stand in the way of the respondents in considering the evidence already furnished by the petitioner along with NARC. In that view of the matter the petitioner's application along with the certificates would be sufficient for grant of SSS Pension in accordance with the Scheme. The observation that the petitioner underwent imprisonment on account of the freedom movement is not clear from the jail records is a hyper- technical reason found out by the respondent in order to deny the benefit of the Scheme. When entries are made in the jail register the superintendent of the jail would not be expected to write the manner in which the 8 ## **W.P.(C).No.14385 of 2011** offence was committed at the relevant time. Under the above circumstances, Ext.P6 is set aside, the respondents shall pass orders on the basis of the application already submitted and the documents already produced by the petitioner for grant of SSS Pension to the petitioner on the basis of Ext.P5 within a period of three months from the date of receipt of copy of the judgment and to grant her the same along with arrears. Sd/- **P.V.ASHA, JUDGE.** AS