K.V Madhavi Amma v Union of India & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 01ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940** ## **WP(C).No. 23282 of 2014** ## **PETITIONER/S:** **K.V MADHAVI AMMA W/O.LATE PULIKKOOL CHERIYA KRISHNAN NAIR, MALAPPATTAM P.O., SREEKANDAPURAM, KANNUR DISTRICT, REPRESENTED BY PUSHPAJAN, S/O.MADHAVI AMMA, MALAPPATTAM P.O., SREEKANDAPURAM, KANNUR DISTRICT.** **BY ADV. SRI. O.D. SIVADAS** ## **RESPONDENT/S:** **1 UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFARIS, FREEDOM FIGHTER'S DIVISION, LOK NAYAK BHAWAN, NEW DELHI. 2 THE UNDER SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF HOME AFFARIS, FREEDOM FIGHTER'S DIVISION, LOK NAYAK BHAWAN,KHAN MARKET, NEW DELHI. 3 THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFP.B.) DEPARTMENT, THIRUVANANTHAPURAM.** **SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL FOR R1 & R2 R3 BY GOVT. PLEADER SRI.JESTIN MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 23282 of 2014 ================== Dated this the 1[st] day of August, 2018 ## **J U D G M E N T** The petitioner, who is the widow of a freedom fighter, is aggrieved by the impugned decision of the 1[st] respondent Union Government rendered as per Ext.P-15 proceedings dated 12.8.2014, whereby the claim for grant of freedom fighter's pension under the Centrla Swatantrata Saink Samman (SSS) Pension Scheme, 1980 has been rejected. The prayers in this Writ Petition (Civil) filed on 19.2014 are as follows: - _“i) call for the records leading to Ext.P-15 and quash the same by issuing a writ of certiorari._ - _ii) issue a writ of mandamus or other appropriate writ, order or direction to the 1[st] respondent to sanction and disburse the Swatantrata Saink Samman Pension to the petitioner with arrears from the date of application without any delay._ - _iii) Declare that Ext.P-15 issued by the central government amounts to willful disobedience to the directions issued by this Hon'ble Court in Ext.P-14 judgment and the same is illegal and arbitrary._ - _iv) grant the petitioner such other and further reliefs which this Honourable court deem just and fit in the circumstance of the case including exemplary costs against the 1[st] and 2[nd] respondents.”_ 2. Heard Sri.O.D.Sivadas, learned counsel appearing for the petitioner, Sri.N.Nagaresh, learned Assistant Solicitor General appearing for R-1 & R-2 and Sri.Jestin Mathew, learned Government Pleader appearing for R-3. W.P.(C)23282/14 - : 3 :- 3. It is the case of the petitioner that her husband, Pulikool Cheriya Krishnan Nair is a freedom fighter, who had actually participated in the Kauvumbai struggle, which was part of the freedom movement and had undergone imprisonment for more than the requisite six months' period and was eligible for grant of pension under the abovesaid Central Scheme. He was arrested on 26.10.1946. 4. Ext.P-2 undertrial-register extract certified by the Superintendent, of Central jail, Cannannore (Kannur) would show that Pulikool Cheriya Krishnan Nair was admitted to the Central Prison Cannanore as an under trial prisoner No.712 on 26.12.1946 as he was accused in C.C.No. 7/1947 on the file of the Special First Class Magistrate Court, Thalassery for offences under Secs.147, 148, 379 I.P.C. and that he was convicted by the said trial court on 10.5.1947. Ext.P-1 convict register extract certified by the Superintendent Central jail, Cannannore on 7.6.1973 would show that the petitioner was a convict No.5771 pertaining to that jail and that he was admitted as a convict to that prison on 13.5.1947 and was released on 2.11.1947 and that the date of sentence of the trial court was on 10.5.1947 and that he was convicted in relation to the abovesaid case. Thus Exts.P1 and P-2 would show that the petitioner had suffered imprisonment as under trial prisoner as well as a convict for the period from W.P.(C)23282/14 - : 4 :- 26.12.1946 upto 2.11.1947, which is more than the requisite minimum six months' period prescribed as per the Central scheme. It is further stated that the petitioner's husband was convicted in the abovesaid cases registered in connection with his participation in the Kauvambai struggle, which took place in 1946 in the northern parts the Kerala. The petitioner's husband had applied for freedom fighter's pension under the Central scheme 1972 and the 1[st] respondent Union Government had issued Ext.P-3 proceedings dated 10.3.1975 granting freedom fighter's pension to the petitioner's husband under 1972 scheme with effect from 15.8.1972. 5. The District Collector, Kannur by Ext.P-4 dated 7.8.1975 had invited the petitioner's husband to be present in order to receive Thamrapathra award, which was to be awarded on 15.8.1972. Later the freedom fighter (petitioner's husband) had died on 18.3.1976. Thereafter, the 1[st] respondent Union Government had issued Ext.P-5 proceedings dated 7.2.1977 ordering that the petitioner, being the widow of the deceased freedom fighter will be granted dependent pension with effect from 19.3.1976, consequent to the death of the freedom fighter. 6. Much later, the 1[st] respondent Union Government had issued Ext.P-6 proceedings dated 19.7.1979 ordering that, as the W.P.(C)23282/14 - : 5 :- petitioner's husband had suffered imprisonment in connection with his involvement in the Kauvumbai struggle and as the Kauvumbai struggle was not recognized for the grant of Central pension, the freedom fighter's pension granted to petitioner's husband will stand cancelled. The petitioner was directed to show cause as to why the pension previously granted to her husband should not be cancelled. Pursuant thereto, the 1[st] respondent Union Government had cancelled the freedom fighter's pension granted under the Central scheme to the petitioner's husband. By Ext.P-7 proceedings dated 2.1.1974 the competent authority of the 3[rd] respondent State Government had granted freedom fighter's pension to the petitioner's husband under the Kerala freedom fighter's pension scheme, on account of his imprisonment suffered in connection with the Kauvambai struggle and the said State pension was granted with effect from 1.4.1971. 7. Much later, the competent authority of the 1[st] respondent Union Government had issued Ext.P-8 proceedings dated 20.1.1998, whereby the six movements, including the Kauvumbai struggle, were additional recognized as part of the national freedom struggle movement in order to make the participants of which eligible for grant of pension under the Central SSS Pension scheme, 1980. 8. It may be noted that Kauvambai movement has been W.P.(C)23282/14 - : 6 :- shown as item No.33 of Anx.18 of the proceedings of the 1[st] respondent Union Government as notified in their website. The said website publication also gives a description of the Kauvambai movement on pages 31 and 32 thereof, which reads as follows: _“Karlvelloor and Kavumbai/Kavumbai Movements:_ _Once the Second World War was over, the communist party decided to launch a determined struggle against imperialism. According to a resolution dated 5th August 1946, the communists were striving hard to organize the peasants and workers against imperialism. The pauperized riots and agricultural labourers of Malabar, decided on a programme to prevent black marketing and hoarding and to cultivate barren land for resolving the food crisis. The Karshaka Sanghams of Malabar involved themselves in searching out the hoarded grain stocks and cultivation of barren lands._ _The activists of Karshaka Sangham took initiative in providing relief to the people. A meeting attended by the activists of Karshaka Sangham, Communist party and trade unions held at Kozhikode in November 1946 declared the need for producing more food by cultivating the barren land. The meeting also exhorted the peasants to ensure that the grains paid as Vaaram should be measured at the stores before being sent to the granaries of Jenmis._ _A strong movement emerged against the corrupt practices of the land lords. On 16 December 1946, the workers and peasants and other sections of the population held a meeting to discuss these matters. The meeting declared that the grains will not be allowed to be transferred away from Karivellur. The activists guarded the routes through which paddy was to be transported. The landlords assisted by Malabar Special Police tried to transfer the paddy and the farmers under the leadership of A V Kunhambu resisted and the police firing resulted in the death of Thiteel Kannan and Keeneri Kunhambu. A Case was filed with 141 persons as accused. 66 persons were convicted. The events at Karivellur activated the peasants of the whole of Malabar._ _The peasants of Irikkoor faced similar problems. The Karshaka Sangham activists of Irikkoor requested the permission of land lord, Janmi, to cultivate the land of Kavumbai. But the Jenmi was in no mood to oblige. Then they gave the number of petitions to the ministers and officials of Madras government. After these, the peasants under the leadership of Karshaka Sangham decided to occupy the area and cultivate even if they had to face the police. The police cordoned off the area and assaulted the activists of the Sangham. Thengil Appa Nambiar, P Kumaran, Alirambilkandi Krishnan, Pulukool Kunjiraman and Manjeri Govindan lost their lives in the police firing._ _The Karlvellor Movement took place on December 20, 1946. 6000 strong mob peasants under communist leadership forcibly stepped a party carrying the paddy due as rent to the chirakkal Raja and later surrounded the farm house. Their demand was that the paddy should be sold through the_ W.P.(C)23282/14 - : 7 :- _cooperative society in order to prevent black marketing. The police opened fire and two persons by name Mankkatu Thattil Krishnan and Keeneri Kunhambu were killed. Several of the participants in the agitation were arrested and sent to jail.”_ The incidents in relation to Kauvambai Movement have also been described in page 373 of “ _Sarvavijnanakosham_ ” _("_ സർവ വ�ജ�നക��ശ� _")_ edited by Dr.Vellayani Arjunan, Ph.D. D.Lit, Director of State Institute of Encyclopedic Publications, Trivandrum, and published by the State Institute of Encyclopedic Publications, Trivandrum, which reads as follows: ## " **ക�വ�മ�യ� സമര�** �ണ�ർ ജ�ല�യ�ലല തള�പറമ� ത�ല�ക�ല�ള ഇര�ക�ർ ഫർകയ�ൽലപട ��വ�മ�യ� ഗ#�മത�ൽ മലബ�റ�ലല �ർഷ� ഗ(സ�നത�നലറ വ+കരത�ഹ�സ� സ-ഷ�ച സമര� �യ�ര�ല�� �ര�ലവള�ര�ല�� നടന ലവട�ലവയ(��ൾക� _(1941)_ കശഷ� �ർഷ�സമരത�നലറ ത+ച�ളയ�യ� മ�റ�യകത�ലടയ�ണ� ഈ ഗ#�മത�ന _._ ര�ഷ ഗട+യ ഗ(�ധ�ന-മ�ണ�യത �മ-�ണ�സ< ഗ(സ�നത�നലറ വളർചയ�� ഉതര ക�രളത�ലലങ�� അലയട�ച@യർന �ർഷ� ഗ(സ�നത�നലറ (�കര�#ത�യ�� ��വ�മ�യ�ല�� ചലനങൾ സ-ഷ�ച�ര�ന� _. 1946-_ ൽ ജ�ഥ ഇത�നട�ത ��യ�ല�ര�ൽ ന�ന�� �ർഷ�ര�ലട ഒര� തലകDര�യ�ലലത� (�ന��-ഷ� അന�വദ�ച@ ��ട�ൻ കവണ� സബ _._ �ളകടർക� ന�കവദന� നൽ�� മലI�ര� ജ�ഥ ക��ഴ�കക�ട< എത� _._ �ളകടർക�� ന�കവദന� സമർപ�ച@ ��വ�മ�യ�യ�ലല �ർഷ�ർ മദ�ര�ശ�യ�ലലത� അനലത റവന-� മഗL�ക�� ന�കവദന� _._ നൽ��യ�ര�ന� എന�ൽ (�ന� �-ഷ�യ�ലട ��ര-ത�ൽ ത+ർപ@ണ�യ�ലല�ന� മ�ഗതമല� ��യ�ല�ർ _,_ ��വ�മ�യ� ഗ(കദശങള�ലല �ർഷ�ർ ജന�മ�ര�ലട ��ര�തമർ ദനങളക� വ�കധയര�വ��യ�� ലചയത� _._ ഈ മർദനങലള കനര�ട�ൻ കവണ� �-ഷ�ക�ർ ര�(വത�ര�ച സനദകസന ��യ�ല�ര�ൽ (ര�ശ+ലന� കനട�ലക�ണ� _._ ര�ക�കമ�ൾ ക(�ല+സ അവലര കവടയ�ട� (�ന� ��ത�ൻ ��ട�തത�ല��ണ< ലത�ഴ�ലവസര� നഷലപട �-ഷ�ക�ർ ആല� (ട�ണ�യ�ല�യ� _._ ഇത�ന� (�റലമ ജന�മ�ര�കടയ�� അവര�ലട ��ര-സൻമ�ര�കടയ�� ക(�ല+സ�നകറയ�� മർദനങള@� അവലര അത-ധ��� (+ഡ�പ�ച@ _._ ഇത�ലന ലചറ�ക�ൻ ത+ര�മ�ന�ച �ർഷ�ർ _1946_ ഡ� _8-_ ന� ര�ഗത� ��വ�മ�യ� ��ന�ൽ ആകല�ചന�കയ�#� കചർന� _._ ന�ടന�യ�ധങള@� �രസമ�ക� _._ �രക�ട�ട� ന�യന�ർ എന ജന�യ�ലട വ+ട�ൽ �-�മ�ലചയത�ര�ന എ� _._ എസ _._ (� _._ ക�ർ ആ ര�ഗത�യ�ൽ ��വ�മ�യ� ��ന< വളഞ� _._ ഉറങ�ക�ടന �ർഷ�കനത�കള�യ (� _._ ��മ�രൻ _,_ മകഞര� ക#�വ�നൻ നമ-�ർ _,_ ലതങ�ൽ അപ@ നമ-�ർ _,_ ബ�ത�ര�ലല �-ഷണൻ എന�വലര ലവട�ലവച@� (�ള�കൽ _._ ��ഞ�ര�മലന മർദ�ച@� ല��ന� ന�റ�ലധ��� ക(ലര ഗ(ത��ള�ക� ക(�ല+സ W.P.(C)23282/14 - : 8 :- _._ ക�സ�� ച�ർജ ലചയത� (�ലനയ�� ആറ�മ�സക�ലകത�ള� ഈ ഗ(കദശത� ക(�ല+സ മർദന� ത�ടർന� _.”_ The English translation of the abovesaid Malayalam description regarding Kauvambai movement is as follows: ## _“Kauvambai strike._ _It is a strike which created a legend out of the peasant movement of Malabar, in Kavumbai Village, Irikkuar Furkha, Taliparambu Taluk of Kannur District. This village gained political prominence after the firing at Kayyur and Karivellur (1941)_ _Waves of protest arose in Kavumbai as well, in response to the uproar of Communist Movement and the Peasant Movement across North Kerala. In 1946, a Peasant Jatha submitted a petition to Sub Collector by arriving at Thalassery seeking permission for Punam farming. Another demonstaration reached Calicut and submitted their petition to the Collector as well. The peasants from Kavumbai reached Madirassi and submitted their petition to the then Revenue Minister. But no decision was arrived at in the matter of Punam farming, Moreover, the peasants of Kuyillur and Kavumbai suffered brutal tortures from the Janmis. The volunteer team formed by the peasants to face these assaults were hunted by the Police, while getting trained in Kuyiloor._ _Due to the unavailability of the Punam seeds, the peasants lost their job and fell into starvation. Rather, they were tortured more by the Police assaults, Janmis and their Managers. Peasants who decided to resist the same, conducted a meeting on 8 of December 1946 in Kavumbai hill. They collected country weapons also. The Malabar Special Police who had their camp in the house of a Janmi named Karakkattidam Nair surrounded the Kavumbai hill during that night. The peasant leaders P. Kumaran Manjeri Govindan Nambiar, Thengil Appu Nambiar and Krishnan of Blathur were short dead while they were asleep and Ulikkal Kunjiraman was beaten to death. Police charged cases against hundreds of them. Torture by the Police continued in this area for another six more months.”_ 9. Pursuant to Ext.P-8 proceedings dated 20.1.1998, the petitioner, being the widow of the freedom fighter, had submitted Ext.P-9 application dated 1.4.1998 to the 1[st] respondent for grant of pension under the Central scheme. The 3[rd] respondent State Government had thereupon issued Ext.P-10 letter dated 10.11.2004, wherein it has been stated that the Superintendent of Central Jail, Kannur has reported that the genuineness of the jail records produced by the applicant cannot be verified at that late stage as the original register was destroyed due to the long efflux of time. But that District Collector and the District Advisory have unanimously W.P.(C)23282/14 - : 9 :- recommended the case of the petitioner for grant of SSS pension. Since no further action was forthcoming from the 1[st] respondent, the petitioner was constrained to approach this Court by filing a Writ Petition (Civil), as W.P.(C).No. 12617/2010. This Court as per Ext.P-11 judgment dated 8.4.2010 had finally disposed of that W.P. (C). by categorically holding in para 4 thereof that this is a case where the Central pension was originally sanctioned to the petitioner's husband and later it was to the petitioner, which was cancelled and therefore what is involved is only a restoration of the grant of pension, as the cancellation was only due to the fact that the Kauvambai struggle was not then recognized for grant of Central pension and that in the light of the proceedings dated 20.1.1998 of the 1[st] respondent Union Government as per Ext.P-8 herein, the objections against the grant of pension to the petitioner are not tenable. Accordingly, with those findings this Court had directed the 1[st] respondent Union Government to consider the request of the petitioner as per Ext.P-9 therein (Ext.P-9 herein) along with Exts.P-3 and P-4 therein (Ext.P-3 and P-5 herein), which were forwarded by the State Government along with the recommendation, jail certificate, etc. and to take a decision therein within four months, etc. In spite of the specific findings made by this Court in para Ext.P- W.P.(C)23282/14 - : 10 :- 11 judgment, more particularly in para 4 thereof, the 1[st] respondent Union Government had issued Ext.P-12 proceedings dated 12.10.2011 rejecting the claim of the petitioner, mainly on the ground that the respondent State Government has not made a definite positive recommendation in Ext.P-10 herein and that the Superintendent of Central jail has not verified or authenticated Exts.P-1 and P-2 herein, etc. 10. Being aggrieved by the rejection order passed by the 1[st] respondent Union Government as per Ext.P-12 dated 12.10.2011 the petitioner was again constrained to approach this Court by filing a Writ Petition (Civil) as W.P.(C).No. 31426/2011. This Court as per Ext.P-13 judgment rendered on 24.2.2012 had finally disposed of W.P.(C).No. 31426/2011 by conclusively holding that the said impugned rejection order is illegal and untenable and that the petitioner is entitled for the grant of pension under the Central scheme based on the jail sufferings of her husband in the freedom struggle as proved by Exts.P-1 and P-2 herein . This Court had found that Exts.P-1 and P-2 herein were found entirely acceptable to the 1[st] respondent Union Government, which led to the issuance of Ext.P-3 dated 10.3.1975 in favour of her husband and Ext.P-5 dated 7.2.1977 in her favour after the death of her husband and that the only ground W.P.(C)23282/14 - : 11 :- on which those pension sanctioning proceedings were cancelled as per Ext.P-6, was solely on the ground that the jail sufferings suffered by the petitioner's husband as part of his involvement in Kauvambai struggle is not acceptable, as the Kauvambai movement was then not recognized for the grant of pension under the Central scheme. That later the 1[st] respondent Union Government themselves had notified as per Ext.P-8 proceedings dated 20.1.1998 that the Kauvambai struggle is also part of the national freedom struggle movement to make it eligible for grant of pension under the Central scheme and what is involved is only mere restoration of the benefits granted to the petitioner and her deceased husband as per Exts.P-3 and P-5 herein. That Exts.P-1 and P-2 jail records were duly verified through the jail authorities prior to the issuance of Ext.P-3 dated 10.3.1975 to the full satisfaction of the 1[st] respondent Union Government and that therefore the insistence that the Superintendent of Central jail, Kannur should again authenticate those documents when admittedly, the records in that regard were fully destroyed due to the long efflux of time is unreasonable and illegal, etc. On this basis, this Court as per Ext.P-13 judgment had directed the 1[st] respondent Union Government to grant pension and arrears to the petitioner with effect from April, 1998 (date of the application as per Ext.P-9 herein) W.P.(C)23282/14 - : 12 :- within four months and pension and its arrears with effect from April, 1998 shall be paid to the petitioner along with interest thereon @ 6% p.a. to the petitioner within one month, etc. Aggrieved by Ext.P-13 judgment dated 24.2.2012 rendered by the learned Single Judge of this Court, the 1[st] respondent Union Government had preferred writ appeal, W.A.No. 1458/2012 before the Division Bench of this Court. The Division Bench of this Court as per Ext.P-14 judgment dated 13.8.2012 had disposed of W.A.No.1458/2012 by conclusively finding that when the primary evidence relating to the period of suffering undergone by him in Kauvambai struggle, as per Exts.P-1 and P-2 therein ( Exts.P-1 and P-2 herein) which were the basis for sanction of Central pension to the freedom fighter in 1975, their Lordships of the Division Bench failed to understand how those documents as per Ext.P-1 and P-2 herein would require further investigation or further proof when the wife had applied again in 1988 consequent to the respondent Union Government according its recognition to the Kauvambai struggle to be part of the national freedom movement for grant of Central pension. That if the materials like Exts.P-1 and P-2 which were the basis for the grant in 1975 were secondary evidence, then there could have been some justification on the part of the respondent Union Government to seek clarification as to whether W.P.(C)23282/14 - : 13 :- records were available or not and that as Ext.P-1 and P-2 herein are primary evidentiary materials, in the absence of any other aspects to doubt its veracity, there was no justification whatsoever on the part of the 1[st] respondent Union Government to reject the claim of the petitioner as per Ext.P-12 herein on the mere ground that there was no formal positive recommendation by the State Government in Ext.P-10 herein. Further that their Lordships of the Division Bench again categorically declared in para 2 of Ext.P-14 judgment that when Exts.P1 and P-2 herein were accepted by the Union Government at an earlier point of time, now they cannot turn around and say that they are not genuine documents and even otherwise, the respondent Union Government had no other document or relevant information indicating that Exts.P1 and P-2 documents are not genuine documents and that in the light of these aspects, the learned Single Judge was fully justified in rejecting the stand of the Union Government as per the impugned Ext.P-13 judgment in order to modulate relief to the petitioner, the Division Bench as per Ext.P-14 judgment directed that for the purpose again making the writ petitioner run from pillar to post, the State machinery was directed to issue entitlement cum verification report and the pension eligibility report along with the forwarding letter within one month from the W.P.(C)23282/14 - : 14 :- date of production of a certified copy of Ext.P-14 judgment and thereafter the Union Government was directed to sanction the pension to the petitioner within one month from the date of the entitlement report from the State Government and the arrears of pension should also be paid to the writ petitioner in the light of the law declared by the Apex Court in the decision in _**UOI v. Kaushalaya Devi**_ reported in (2007) 9 SCC 525, wherein it was held that in the case of grant of pension based on secondary evidence, the pension need be granted only from the date of the sanction order and that in the case of primary evidence, the pension is to be granted from the date of the application. 11. Thereafter, the 3[rd] respondent State Government had issued Government letter No.73317/FFP-A1/2o12/GAD dated 31.10.2012, whereby the verification cum entitlement to pension in favour of the petitioner was submitted to the 1[st] respondent Union Government, wherein it has been inter alia stated as follows: _“... ..... Now the petitioner has produced the original extract of convict register and undertrial register. In the extract, it is found that the petitioner's husband was admtited to Central Jail, Kannur on 26.12.1946 and convicted on 10.05.1947 and the period of imprisonment including under trial period is more than six months. Hence the claim of the petitioner is recommendable.....”_ 12. In spite of conclusive verdict issued by this Court as per Exts.P11, P-13 and P-14 judgments as well as the positive recommendation and verification cum entitlement report furnished W.P.(C)23282/14 - : 15 :- by the 3[rd] respondent State Government, the 1[st] respondent Union Government has again rejected the claim of the petitioner as per Ext.P-15 proceedings dated 12.8.2014 holding very strangely that the claim of the petitioner is not backed by primary evidence. The grounds of rejection are taken in para 6 of the impugned Ext.P-15 proceedings, which reads as follows: _“6. After examination of the claim, it is found that Smt. K.v.Madhavi Amma is not eligible for grant of dependent family pension due to the following shortcomings/discrepancies:_ - _i. The petitioner has not furnished record based primary evidence, duly verified by the State Government, in support of the claimed imprisonment suffering of her late husband._ - _ii. The petitioner has not furnished record based secondary evidence, duly verified by the State Government._ - _iii. In support of her claim she has furnished Copies of Extracts from the convict register, however, these copies have not been verified by the State Government. Instead the State Government had expressed its inability to verify the genuineness of these extracts. In the absence of the verification from the State Government these cannot be treated as genuine and cannot be relied upon._ - _iv. The Government of Kerala has vide letter No. 73317/FFP A1/2012/GAD dated 31.10.2012, merely reiterated the details of true extract of the convict register, without making a reference to its verification from office records. Earlier Government of Kerala had vide letter No. 83905/FFP A1/2004/GAD dated 10.11.2014, inter alia informed that, the Superintendent of Central Prison, Kannur reported that the genuineness of the jail records, produced by the applicant can not be verified as the original register was destroyed due to the afflux of time. Hence, it may not be treated as document based, acceptable primary evidence duly verified from office records as per the provisions of the Swatantrata Sainik Samman Pension Scheme, 1980._ - _v. As mentioned in previous paras the claim of the petitioner cannot be treated as primary evidence based case. The onus to prove her husband's suffering lies with the petitioner and she has not furnished the requisite evidences to prove her claim. Hence, this Ministry has vide letter of even No. dated 30.04.2014, requested the State Government either to verify the true extract of the convict register or obtain 2 Co Prisoner Certificates from the_ W.P.(C)23282/14 - : 16 :- _petitioner and issue NARC after due verification. However, the State Government has failed to do so._ - _vi. The State Government has recommended the claim of the petitioner as primary evidence based case. However, the State Government has not verified the authenticity of the documents furnished by the petitioner. Since the State Government has failed to verify the genuineness of the document the recommendation of the State Government based on unverified document cannot be acceded to._ - _vii. Though the positive recommendation of the State Government is mandatory, it is not binding on the Central Government. The Division Bench of the Hon'ble, High Court of Kerala, Ernakulam Bench has vide Judgment dated 17.08.2012 in the W.A.1017 of 2012 has observed as under:-_ _Para 8..........As per the scheme which came into force in 1981, the State machinery i.e General Administration (FFP.B) has to do the ground work with reference to the documents and then forward the application along with the report which is called verificationentitlement-pension report and thereafter the Central Government has to verify the documents in detail and then proceed to deal with the application as per the procedure contemplated. There is no compulsion or duty cast that with the recommendation of the State Government, the Central Government has to sanction the pension. The authority which deals with the application must have the subjective satisfaction of the material forthcoming from the application and the documents..._ _The Hon'ble Supreme Court of India has vide Jugdment 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."_ The abovesaid grounds of rejection relied on by the 1[st] respondent Union Government in Ext.P-15 proceedings amount to nothing but illegality and _Wednesbury unreasonableness,_ due to the reasons mentioned herein below:- 13. Exts.P-1 and P-2 jail records have been fully acted upon by the competent authority of the 1[st] respondent Union Government in W.P.(C)23282/14 - : 17 :- issuing Ext.P-3 proceedings dated 10.3.1975 in favour of the petitioner's husband and Ext.P-5 proceedings dated 7.2.1977 in favour of the petitioner, after the death of her husband on 18.3.1976. The proceedings at Exts.P-3 and P-5 were issued by the 1[st] respondent in accordance with the provisions contained in the Freedom Fighters' Pension, 1972 which was earlier formulated by the 1[st] respondent Union Government. Clause 3(a) thereof deals with eligibility of freedom fighter for the purpose the said pension scheme, which reads as follows: _“A person who has suffered minimum imprisonment of six months in the mainland jails before Independence. ....”_ Clause (a) of 7 dealing with procedural modalities for furnishing ## documentary evidence reads as follows: ## _“(a) IMPRISONMENT/DETENTION, ETC._ _Certificate from the jail authorities concerned, District Magistrate or the State Government. In the case of non-availability of such certificates, co-prisoner certificate from sitting M.P or MLA or from ex-MP or ex-MLA specifying the jail period.”_ 14. Corresponding provisions contained in the present Central SSS Scheme, 1980 are almost pari materia. Clause 3(a) which deals with as to who is eligible freedom fighter for the purpose of grant of Samman Pension under 1980 Schem, reads as follows: _“(a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence......”_ Clause 7(a) thereof deals with the modalities for submitting W.P.(C)23282/14 - : 18 :- ## evidentiary materials, reads as follows: ## _“(a) IMPRISONMENT/DETENTION, ETC._ _Certificate from the jail authorities concerned, District Magistrates or State Government. In the case of non-availability of such certificates, co-prisoner certificates from a sitting MP or MLA or ex-MP or ex-MLA specifying the jail period......”_ Therefore, the criteria of eligibility and the modality for furnishing primary evidentiary material are identical both under the 1972 and 1980 Schemes framed by the 1[st] respondent Union Government. It was after being fully satisfied the acceptability of Exts.P-1 and P-2 herein regarding the jail sufferings of the petitioner's husband that the competent authority of the 1[st] respondent Union Government had issued Ext.P-3 and Ext.P-5 proceedings in favour of the petitioner's husband and later in her favour. It so happened that Exts.P-3 and P-5 were cancelled pursuant to Ext.P-6 solely on the ground that the Kauvambai struggle (the participation in which had led to the petitioner's husband's abovesaid jail imprisonment) was not then duly recognized by the Union Government for the grant of pension under the Central scheme. Both at the time of Ext.P-6 cancellation order as well as in all the subsequent proceedings issued by the 1[st] respondent till now, there is not even a whisper anywhere that there are any valid and relevant grounds for suspecting the genuineness and authenticity of Exts.P-1 and P-2 jail records. The 3[rd] respondent State Government has candidly stated in Ext.P-10 dated 10.11.2004 W.P.(C)23282/14 - : 19 :- that in view of the long efflux of time, the jail records in the Central Jail Kannur have been destroyed and therefore, cannot be verified. There is no whisper of allegation raised by the 1[st] respondent Union Government that the said factual assertion made by the 3[rd] respondent State Government in Ext.P-10 as well as in subsequent communication about the destruction of the jail records, is in any manner factually wrong or false. It is in the light of these conclusive aspects that this Court had categorically declared in para 4 of Ext.P-11 judgment as well as in Exts.P-13 and P-14 judgments that the stand of the respondent Union Government in rejecting the acceptability of Exts.P-1 and P-2 jail records is nothing short of impropriety and illegality. The said conclusive findings made by this Court in para 4 of Ext.P-11, as subsequently reiterated in Exts.P-13 and P-14 judgments, have not been challenged and altered in the manner known law and the said fact findings and directions issued by this Court in those judgment have become final and conclusive as between the petitioner and the respondents, more particularly the 1[st] Union Government. Therefore, the 1[st] respondent Union Government is barred by the principles of restijudicata and constructive resjudicata in raising the present objections in Ext.P-15, which if permitted, amounts to altering and re-opening those conclusive findings made by this Court W.P.(C)23282/14 - : 20 :- in the abovesaid judgments. The said course of action is absolutely impermissible in law and cannot be countenanced by a court of law. 15. Pursuant to the conclusive directions issued by the Division Bench of this Court in Ext.P-14 judgment, the only formality that was lacking was a formal positive recommendation by the State Government in favour of the petitioner and the furnishing of a verification cum entitlement report by that authority to the 1[st] respondent Union Government. In view of the conclusive directions issued by the Division Bench of this Court in Ext.P-14 judgment, the 3[rd] respondent State Government had issued such a positive letter of recommendation along with the positive verification cum entitlement report in favour of the petitioner as per State Government's letter dated 31.10.2012 referred to in para 2 of Ext.P-15. If the grounds of rejection mentioned in Ext.P-15 are accepted, it would amount to requiring the petitioner and the 3[rd] respondent State Government do the impossible, that is to get Exts.P-1 and P-2 verified through the Superintendent of the Central Jail, Kannur. It is an indisputable fact that the said jail records pertaining to Exts.P-1 and P-2, which were earlier available, were later destroyed by the long lapse of time, as is asserted in Ext.P-10 letter dated 10.11.2004 issued by the 3[rd] respondent State Government. Therefore, in the instant case, it is W.P.(C)23282/14 - : 21 :- only to be held that Exts.P-1 and P-2 are primary evidentiary materials, which would conclusively show that the petitioner's deceased husband had suffered imprisonment on account of his participation in the Kauvambai struggle, for more than the requisite minimum six months' period. Moreover, as has been repeatedly held in Exts.P-11, P-13 and P-14 judgments, what is involved in the instant case is only mere restoration of the previous orders issued as per Ext.P-3 dated 10.3.1975 and Ext.P-5 dated 7.2.1977, with effect from 20.1.1998, on account of the subsequent recognition granted by the 1[st] respondent Union Government to Kauvambai movement so as to form part of the national freedom movement. 16. Accordingly, it is ordered that this Court has no alternative but to declare that the rejection order issued by the 1[st] respondent as per Ext.P-15 proceedings dated 12.8.2014 is illegal, ultra vires, arbitrary and improper. In that view of the matter, it is ordered that Ext.P-15 proceedings dated 12.8.2014 will stand set aside. Since the petitioner has proved her case on the basis of primary evidentiary materials as per Exts.P-1 and P-2 it is only to be ordered that she is legally entitled for the grant of pension and its arrears under the Central scheme from the date of receipt of Ext.P-9 application. Ext.P-9 application is dated 9.4.1998 and hence it is W.P.(C)23282/14 - : 22 :- ordered that pension and arrears should be paid to the petitioner with effect from 15.4.1998 within two months from the date of production of a certified copy of this judgment. Though a learned Single Judge of this Court as per Ext.P-13 judgment had directed grant of pension and its arrears along with interest thereon @ 6% p.a., the Division Bench of this Court in Ext.P-14 judgment has not positively issued any direction for the grant of interest thereon. Therefore, at this stage this Court is desisting from awarding any interest on the said pension and arrears thereon payable to the petitioner. However, it is ordered that in case the 1[st] respondent Union Government does not sanction and disburse pension and its arrears with effect from 15.4.1998, within the abovesaid stipulated time limit of 2 months, then the said pension and arrears will carry interest @ 12% p.a. from the date on which each of the instalments had fallen due. It is further ordered that in such eventuality, the said pension and its arrears along with abovesaid interest @ 12% should be paid by the 1[st] respondent Union Government and thereafter, the competent authority of the 1[st] respondent Union Government shall ensure that the said interest amount so paid shall be recouped and recovered from the erring officials, who are responsible for such delay. The Registry will forward a certified copy of this judgment to W.P.(C)23282/14 - : 23 :- the 1[st] respondent for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** W.P.(C)23282/14 - : 24 :- ## **APPENDIX** ## **PETITIONER'S/S' EXHIBITS:** **EXT.P1.TRUE EXTRACT OF THE UNDER TRIAL REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL KANNUR.** **EXT.P2.TRUE EXTRACT OF THE CONVICT REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL KANNUR.** **EXT.P3.TRUE COPY OF THE PROCEEDINGS DATED 10/3/1975 ISSUED BY THE CENTRAL GOVERNMENT** **EXT.P4.TRUE COPY OF THE INITMATION DATED 7/8/1975 ISSUED TO THE PETITONER'S HUSBAND.** **EXT.P5.TRUE COPY OF THE PROCEEDINGS DATED 7/2/1977 ISSUED TO THE PETITIONER** **EXT.P6.TRUE COPY OF THE PROCEEDINGS DATED 19/7/1979 ISSUED TO THE PETITIONER** **EXT.P7.TRUE COPY OF THE PROCEEDINGS DATED 2/1/1974 GRANTING STATE PENSION TO THE PETITIONER'S HUSBAND.** **EXT.P8.TRUE COPY OF THE PROCEEDINGS NO.6/1/97-FF(P) DATED 20/1/1998 ISSUED BY THE GOVERNMENT OF INDIA.** **EXT.P9.TRUE COPY OF THE APPLICATION DATED 1/4/1998 SUBMITTED BY THE PETITIONER** **EXT.P10.TRUE COPY OF THE PROCEEDINGS DATED 10/11/2004.** **EXT.P11.TRUE COPY OF THE JUDGMENT IN WPC NO.12617/2010 DATED 8/4/2010.** **EXT.P12.TRUE COPY OF THE PROCEEDINGS ISSUED BY THE CENTRAL GOVERNMENT DATED 12/10/2011.** **EXT.P13.TRUE COPY OF THE JUDGMENT IN WPC NO.31426/2011 DATED 24/2/2012.** **EXT.P14.TRUE COPY OF THE JUDGMENT IN WA NO.1458/2012 DATED 13/8/2012.** **EXT.P15.TRUE COPY OF THE PROCEEDINGS DATED 12/8/2014 ISSUED BY THE 2ND RESPONDENT** RESPONDENTS' EXHIBITS R1(A) COPY OF THE FEATURES OF THE SCHEME.