Kunjukutty Omana v. Union of India, State of Kerala and District Advisory Committee for Freedom Fighters Pension

**MONDAY, THE 30TH DAY OF JULY 2018 / 8TH SRAVANA, 1940 WP(C).No. 24178 of 2011 (V)** **----------------------------------------** **PETITIONER :- -------------** **KUNJUKUTTY OMANA, W/O.LATE MADHAVAN, PERAVATHOTTIL VEEDU, (GANAPATHY VILASOM), CHAVARA PO, KOLLAM.** **BY ADVS.SRI.B.MOHANLAL SRI.T.PRASAD SRI.SAIJU S.** **RESPONDENTS :-** **----------------** **1. UNION OF INDIA REPRESENTED BY THE SECRETARY, HOME AFFAIRS FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAVAN, NEW DELHI - 110 003. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION, (FREEDOM FIGHTERS PENSION (FFP) DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM-1. 3. THE DISTRICT ADVISORY COMMITTEE FOR FREEDOM FIGHTERS PENSION, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM - 691 013. R2 BY ADV.SRI.JUSTIN MATHEW, GOVERNMENT PLEADER R1 BY ADVS. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA SRI.P.PARAMESWARAN NAIR, ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 24178 of 2011 (V) ---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :-** ## **------------------------** |**EXHIBIT P1**|**:**|**THE TRUE COPY OF THE ORDER NO:K.DIS.6884/74 DATED**| |---|---|---| |||**09.03.1974 ISSUED BY THE 3RD RESPONDENT.**| |**EXHIBIT P2**|**:**|**THE TRUE COPY OF ORDER NO:N2-64774/99 DATED 17.02.2000**| |||**ISSUED BY THE 3RD RESPONDENT.**| |**EXHIBIT P3**|**:**|**THE TRUE COPY OF THE DECLARATION SUBMITTED BY THE**| |||**PETITIONER'S HUSBAND TO THE 3RD RESPONDENT.**| |**EXHIBIT P4**|**:**|**THE TRUE COPY OF THE PENSION PAYMENT ORDER AND THE**| |||**RELEVANT PAGES OF THE PENSION BOOK OF LATE SRI.MADHAVAN.**| |**EXHIBIT P5**|**:**|**THE TRUE COPY OF THE DEATH CERTIFICATE OF LATE**| |||**SRI.MADHAVAN ISSUED FROM THE CHAVARA GRAMA PANCHAYATH**| |||**DATED 17.02.2007.**| |**EXHIBIT P6**|**:**|**THE TRUE COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY**| |||**SRI.R.S.UNNI, EX.MINISTER DATED 11.08.1973.**| |**EXHIBIT P6(a)**|**:**|**THE TRUE COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY**| |||**SRI.UMMINI RAGHAVAN DATED 04.11.1999.**| |**EXHIBIT P6(b)**|**:**|**THE TRUE COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY**| |||**SRI.K.GOPINADHAN DATED 08.11.1999.**| |**EXHIBIT P7**|**:**|**THE TRUE COPY OF THE APPLICATION DATED 07.07.2010**| |||**SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.**| |**EXHIBIT P8**|**:**|**THE TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE**| |||**RECEIPT OF EXT.P7 APPLICATION BY THE 3RD RESPONDENT.**| |**RESPONDENTS' EXHIBITS**||**:-**<br>**NIL**| |**--------------------------**||| **//TRUE COPY//** ## **P.A. TO JUDGE** **rkj** ## **ALEXANDER THOMAS, J. ------------------------------------------W.P.(C)No.24178 of 2011 --------------------------------------------Dated this the 30[th] day of July, 2018** ## **JUDGMENT** The petitioner, who claims to be the widow of a freedom fighter, who participated in the freedom movement, is aggrieved by the alleged inaction on the part of the respondent in considering her claim for grant of freedom fighters family dependent pension as requested in her Ext.P7 application dated 07.07.2010. The prayers in this writ petition (civil) filed on 05.09.2011 are as follows:- _“i) To call for the records from the Respondents leading to the Petitioner's application for Swatantra Sainik Samman Central Pension 1980._ _ii) To issue a writ of mandamus or any other appropriate writ, order or commanding the Respondents 2 and 3 to recommend the Application submitted by the Petitioner's Husband Late Sri.Madhavan along with Ext.P7 Application submitted by the Petitioner to the 1[st] Respondent and direct the 1[st] Respondent to sanction and disburse Central Pension as per the Swatantra Sainik Samman Pension Scheme, 1980 with effect from the date of application within a stipulated time as directed by this Hon'ble Court._ _iii) To declare that the Petitioner is entitled to get Swatantra Sainik Samman Central Pension with effect from the date of application._ W.P.(C)No.24178 of 2011 ..2.. _iv)To issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.B.Mohan Lal, learned counsel appearing for the petitioner, Sri.N.Nagaresh, learned Assistant Solicitor General appearing for respondent No.1-Union of India (UOI) and Sri.Jestin Mathew, learned Government Pleader appearing for respondent Nos.2 and 3. 3. It is stated that the petitioner's husband, K.Madhavan was a freedom fighter who had actively participated in the freedom movement and had suffered detention by way of lockup at the Kollam Kasaba Police Station for the period from 10.6.1946 to 14.1.1947 on account of a case registered against him due to his participation in the freedom movement. That by Exts.P1 and P2 and P4 orders, he was granted freedom fighters pension under the State Scheme by the 3[rd] respondent-District Collector. Ext.P3 is the declaration given by her husband that the petitioner is his eligible dependent. W.P.(C)No.24178 of 2011 3 It is stated by the petitioner that during his life time, the petitioner's husband, K.Madhavan had filed application for grant of pension under the Central Swatantra Sainik Samman (SSS) Pension Scheme _,_ 1980 by submitting necessary application as early as in the year 1999 which was not considered by the respondents. Thereafter, her husband died on 09.02.2007 as evident by Ext.P5 death certificate. Later the petitioner had submitted Ext.P7 (1) to P7 (5) application dated 07.07.2010 before the respondents for grant of pension under the Central SSS Pension Scheme, 1980. In support of that claim the petitioner has placed reliance on Ext.P6, P6 (a) and P6 (b) co-prisoners certificate. Ext.P6 is a co-prisoner certificate said to have issued by one R.S.Unni, a freedom fighter and former Deputy Speaker of the Legislative Assembly who is stated to have undergone detention at Kollam Kasaba Police Station lock up for seven months from 10[th] June, 1946 to 14[th] January, 1947 and he has certified that the petitioner's husband Sri.K.Madhavan had also suffered police detention in the same lock up for the aforesaid period. Ext.P6(a) is yet another certificate issued by Sri.Ummini Raghavan, who is said to be the recipient of the Central freedom W.P.(C)No.24178 of 2011 4 fighters pension as per Order No.SZ/19/1484/73 FF VIII, dated 31.3.1982 and that he has suffered actual imprisonment for more than five years and eleven months in the freedom struggle when he has lodged in Central Jail, Thiruvananthapuram (Convict No.1125), Kottarakkara as well as Kollam Kasaba Police lockup. He has also certified that the petitioner’s husband had suffered police station lockup for the above said period in question. Ext.P6(b) is yet another certificate issued by Sri.K.Gopinathan, who was the recipient of Central freedom fighters pension under Order No.19/1/G2/72 FF VI dated 12.10.1972 and he has also certified that the petitioner’s husband K.Madhavan had suffered police lockup detention during the above said period. 4. Sri.B.Mohan Lal, learned counsel appearing for the petitioner has placed reliance on the decision of the Apex Court in **Mukund Lal Bhandari & others v. Union of India [1993 SCC Supl.(3) 2]** , para.9 which reads as follows:- _“9. That leaves us with the question as to whether, notwithstanding the date on which the application itself is made, the claimant should be entitled to the benefit of the pension with effect from an earlier date. In support of the contention that the benefit should be made available with retrospective effect, reliance is placed on the two cases cited earlier where the benefit is given with effect from August 1, 1980. We have given our anxious consideration to the question and are of the view that for reasons more than one, the_ W.P.(C)No.24178 of 2011 5 _benefit should flow only from the date of the application and not from any date earlier. As pointed out before in the two earlier cases the question with regard to the retrospectivity of the benefit was neither raised nor answered. We have, therefore, to decide it for the first time. There is no doubt that if the object of the Scheme is to benefit the freedom fighters, theoretically, they should be entitled to the benefit from the date the Scheme came into operation. But the history, the true spirit and the object of the Scheme would itself probably not support such straitjacket formula. As has been pointed out above, the Scheme was introduced in 1972 on the occasion of the Silver Jubilee of our National Independence. It is not suggested that some of the freedom fighters were not in need of financial assistance prior to that date. When the Scheme came into force for the first time, it was also restricted to those who were in need of such assistance and hence only such freedom fighters were given its benefit, whose annual income did not exceed Rs.5000. It is only later, i.e., from August 1, 1980, that the benefit was extended to all irrespective of their income. The object in making the said relaxation was not to reward or compensate the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the Freedom Struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the Scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension_ W.P.(C)No.24178 of 2011 6 _under the present Scheme is not the only benefit made available to the freedom fighters or their dependants. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them for quite sometime now.”_ 5. The learned counsel for the petitioner has also placed reliance on the observations of the Apex Court in paras.6 and 7 of ## the decision in **Gurdial Singh v. Union of India & others [(2001) 8 SCC 8]** , **w** hich reads as follows:- _“6. The Scheme was introduced with the object of providing grant of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of the citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from a foreign country is very cumbersome and expensive. Keeping in mind the object of the Scheme the authorities concerned are required that in appreciating the Scheme for the benefit of freedom fighters a rational and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the Scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukund Lal Bhandari case observed: (SCC pp. 7-8, para 9)_ _xxx xxx xxxx_ _The Court categorically mentioned that the pension under the Scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not._ _7. The standard of proof required in such cases is not such standard which is required in a criminal case or_ W.P.(C)No.24178 of 2011 7 _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 halfa-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 unless the same is rebutted by cogent, reasonable and reliable evidence.”_ 6. The 2[nd] respondent-State Government has filed counter affidavit dated 19.6.2012. Therein the main contention is that the 2[nd] respondent State Authorities could not take a decision to recommend the case of the petitioner as she has failed to produce necessary documents along with Ext.P7 application. Further in para.4 of the said counter affidavit it is stated that various defects have been noted in Ext.P6, P6 (a) and P6 (b) coprisoners certificate. That in the case of Ext.P6(a) co-prisoners certificate issued by Sri.Ummini Raghavan, no material has been W.P.(C)No.24178 of 2011 8 produced to prove that the said certifier has suffered the requisite imprisonment period and that the order sanctioning Central pension to that certifier has also not been produced. Further in the case of Ext.P6 (b) certificate issued by Sri.K.Gopinathan, it is stated that nothing has been disclosed regarding the actual imprisonment period and the certificate was not accompanied by any Jail records and the SSS pension sanctioning order of the Sri.K.Gopinadhan was also not produced. Further it is stated that in the case of Ext.P7 certificate issued by Sri.R.S.Unni it was found that he was not an SSS Pensioner and his period of imprisonment was only **7** months. It is stated by the learned Government Pleader that as per the Central SSS Pension Scheme, 1980 **,** it has to be established that the certifier who has issued the personal knowledge certificate in the case of the underground suffering of claimant, has suffered actual imprisonment period of not less than two years in connection with participation in the freedom movement. In cases of claimants who claim actual imprisonment suffering, the same has to be established on the basis of the co-prisoners certificate issued by two certifiers who are eligible freedom fighters pension recipients under the Central W.P.(C)No.24178 of 2011 9 Scheme and who in turn had suffered imprisonment for minimum one year period as established on the basis of the jail records. Therefore it is for the petitioner to produce necessary materials to show that Sri.Ummini Raghavan who has issued Ext.P6 (a) certificate has suffered actual imprisonment for the requisite period and that he was recipient of SSS pension. It will be appropriate to refer to the averments in para.4 of the counter affidavit dated 19.6.2012 filed by the 2[nd] respondent-State Government which reads as follows:- _“4. It is hereby submitted that according to the petitioner her husband was a freedom fighter and suffered imprisonment in jail between 10.06.1946 to 14.01.1947. Along with the application for S.S.S.Pension, the petitioner produced co-prisoner certificates from 3 persons. On verification of the coprisoner certificates various defects were noted. Sri.Ummini Raghavan, Sri.Gopinathan and Sri.R.S.Unni were issued certificates stating that the petitioner's husband suffered jail imprisonment between 10.06.1946 to 14.01.1947. In the case of the certificate issued by Sri.Ummini Raghavan, no document was produced to prove that the certifier suffered more than 5 years of imprisonment. The S.S.S.Pension sanctioning order of the certifier was also not produced. In the case of the certificate issued by Sri.Gopinathan nothing is stated regarding his actual imprisonment period and the certificate was not accompanied by any jail records. The S.S.S. Pension sanctioning order of Sri.Gopinathan was also not produced. In the case of the certificate issued by Sri.R.S.Unni, it was found that he was not a S.S.S pensioner and his period of imprisonment was only 7 months. The three certificates produced by the petitioner along with the application were not acceptable since they were issued by ineligible_ W.P.(C)No.24178 of 2011 10 _persons.”_ 7. Therefore it is for the petitioner to rectify the defects pointed out in para.4 of the above counter affidavit and to show that the certifiers who have issued the co-prisoners certificates are eligible to issue such certificates under the Central Scheme. If such materials are duly produced by the petitioner within a reasonable period before the 2[nd] respondent-State Government, the said Authority shall reconsider the matter and then take a decision whether the case of the petitioner is to be recommended, on the basis of the terms and conditions of the Central SSS Pension Scheme, 1980. Orders in that regard should be passed by the 2[nd] respondent-State Government within four months from the date of production of the above said materials by the petitioner. Thereafter the competent authority of the 2[nd] respondent should duly communicate the decision to the 1[st] respondent-Union Government and a copy of the said communication should also be forwarded to the petitioner. In such eventuality the competent authority of the 1[st] respondentUnion Government shall take a final decision on the claim of the petitioner under the Central Scheme within six weeks from the W.P.(C)No.24178 of 2011 11 date of receipt of the communication in that regard. 8. The afore-said contentions of the petitioner is based on the afore-cited rulings of the Apex Court should also be duly taken note of by the respondents while rendering a decision as afore-stated. With these observations and directions this writ petition (civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** skj