Lakshmi v. Union of India and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929** **WP(C).No. 20497 of 2007(M)** **--------------------------** **PETITIONERS:** - **-------------------** - **1) LAKSHMI, W/O.K.DAS, AGED 79, THURTHIKAD, MUHAMMA P.O., ALAPPUZHA. (DIED).** - ***Addl. 2) SAKKUBHAI, D/O.K.DAS, AGED 59 YEARS, MADAPURAKKAL, KARUVATTA P.O., HARIPPAD, ALAPPUZHA DISTRICT.** - **3) JANAMMA, D/O.K.DAS, AGED 50, SREERUDA, SANATHANAM WARD, KAITHAVANA, ALAPPUZHA.** - **4) D.SHAJI, S/O.K.DAS, AGED 48, THURUTHIKKAD, MUHAMMA P.O., ALAPPUZHA.** - **(*Addl. petitioners 2 to 4 are impleaded as per order in IA.No.2411/2008 dated 15.2.2008.)** **BY ADV. SRI.J.OM PRAKASH** **RESPONDENTS:** - **----------------------** **1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI.** **2. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, NEW DELHI.** **BY ADV. SRI.S.KRISHNAMOORTHY, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **PETITIONERS' EXHIBITS:-** - **P1: Copy of the application filed by Sri.K.Das dtd.15.6.1998.** - **P2: Copy of the Convict Register relating to Sri.K.Das issued by the Superintendent, Central Prison, Thiruvananthapuram dtd. Nil.** - **P3: Copy of the letter of the Addl.Secretary dtd.11.8.99.** - **P4: Copy of the order of the Under Secretary to Government of India, Ministry of Home Affairs dtd.22.1.2000.** - **P5: Copy of the order of District Collector, Alappuzha dtd.13.2.74.** - **P6: Copy of the letter of the Superintendant, Central Jail, Thiruvananthapuram, dtd.1.9.2006.** - **P7: Copy of the representation of the petitioner dtd.22.11.2006.** - **P8: Copy of the A.D.Card issued by the 2[nd] respondent dtd. Nil.** - **P9: Copy of the relevant portion dealing with Punnapra-Vayalar struggle in the book Hostory of the Freedom struggle in Kerala, Part III.** ## **RESPONDNETS' EXHIBITS:Nil.** ## **( true copy )** ## **P.A. TO JUDGE.** ## **kvs/-** ## **T.R.RAMACHANDRAN NAIR, J.** ## **=========================** ## **WP(C).No.20497 of 2007-M.** ## **=========================** **Dated this the 15[th] day of February, 2008.** ## **J U D G M E N T** **The deceased petitioner is the widow of late Sri.K.Das who was a prominent freedom fighter who had actively participated in the Punnapra-Vayalar Struggle. Additional petitioners are her son and two daughters. She died on 22.10.2007. The late husband of the deceased petitioner was arrested by the police in connection with the struggle and he was convicted by the First Class Magistrate Court, Cherthala in case No.M.C.6/1122. Ext.P2 is the true extract of the convict register issued from Central Prison, Thiruvananthapuram showing the details of his incarceration in the jail. Ext.P1 is the application for Swatanthrata Sainik Samman Pension submitted by the late husband of the petitioner. The application was duly recommended by the State Government as per Ext.P3. Ext.P5 is the order sanctioning State pension. In spite of the same the application was rejected by the Central** **WP(C).No.20497 of 2007-M. 2** **Government as per Ext.P5. The only reason for rejection stated is that since the convict register in original is not available for verification the extract cannot be relied upon.** **2. The question is whether the said stand taken by the 2[nd] respondent is correct in the light of the positive recommendation made by the State Government as per Ext.P3. Ext.P3 shows that the District Collector, Alappuzha recommended the case for SSS Pension and the State Government has also recommended the case. It presupposes that they were fully satisfied about his sufferings. The learned counsel for the petitioners also relied upon Ext.P6 nonavailability of record certificate issued by the Superintendent, Central Prison, Thiruvananthapuram stating that the records for the period 1122-1123 are not available as they stand destroyed due to efflux of time and constant use. The learned counsel for the petitioners invited my attention to Ext.P9 which a publication by the State Government showing the details of Punnapra-Vayalar Struggle. In the array of leaders mentioned the name of late husband of the deceased petitioner also figures as prominent** **3** **WP(C).No.20497 of 2007-M.** ## **leader.** **3. The learned counsel for the petitioners also relied upon the decisions reported in** _**T.Sesha Reddy v. Managing Committee, Jame Masjid**_ **(AIR 2002 NOC 164) and** _**Jagdish Singh v. Balwant Singh**_ **(AIR 2004 NOC 90) to contend for the position that since the document in question was more than thirty years old and as the same has been produced from proper custody the document has to be regarded as a genuine one.** **4. This is a case where the State Government had duly recommended the application for grant of SSS Pension. The State Government has relied upon the report of the District Collector for recommending the case. Ext.P2 is the true extract of the convict register showing the period of imprisonment of the late husband of the petitioner. Nobody has disputed the fact that he was convicted and imprisoned. The only objection taken by the Government of India is that the original of the convict register is not available for verification. The same is a totally flimsy reason as far as the issue is concerned. The Apex Court in** _**R.Narayanan v. Union of India**_ **4** **WP(C).No.20497 of 2007-M.** **(AIR 1990 SC 746) has held that, “secondly, no one can really expect official records to have been preserved for a period of 40 years to prove the treatment given to the claimant for the injuries sustained by him during the freedom struggle.” The situation herein is similar. Herein as the true extract of the convict register was available which was subjected to verification by the State Government, the necessity of a further comparison with the original cannot be insisted particularly since the same is not in existence. Its non-availability cannot defeat the claim. The deceased petitioner's late husband is a recipient of State pension also. The approach made by the first respondent is too technical. In the light of the decision of the Apex Court reported in** _**Gurdial Singh v. Union of India**_ **(2001(8) SCC 8), the first respondent was not justified in taking a too technical approach. The learned counsel is also well founded in the submission that since the true extract was produced from proper custody and as there was nothing suspicious on the face of the document, it should be regarded as a genuine document itself. The observations of the** **5** **WP(C).No.20497 of 2007-M.** **Supreme Court in para.7 of the judgment reported in** _**Gurdial Singh v. Union of India**_ **(2001(8) SCC 8) are relevant and extracted below:** **“7. 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 unless the same is rebutted by cogent, reasonable and reliable evidence.”** **5. Therefore, Ext.P4 is quashed. The entitlement of the deceased first petitioner for grant of SSS Pension is declared. Now** **6** **WP(C).No.20497 of 2007-M.** **that she is no more the right of the additional petitioners is to get the arrears from the date of receipt of Ext.P1 application by the Central Government till her death on 22.10.2007. Therefore, there will be a direction to the first respondent to pass orders sanctioning pension in the light of Ext.P3 recommendation of the State Government and as directed above. The amount of arrears as directed above shall be sanctioned in favour of the additional petitioners who are the legal representatives of the deceased first petitioner. The additional petitioners herein will produce the death certificate in original and the legal heirship certificate issued by the Tahsildar concerned in original before the first respondent to enable the first respondent to sanction the same and to apportion the share of each of the additional petitioners equally. With the above directions this Writ Petition is disposed of.** ## **T.R.RAMACHANDRAN NAIR, JUDGE.** **kvs/-**