M. D. Vakkan v Union of India and State of Kerala (W.P.(C).No.16111 of 2013)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 9TH DAY OF JULY 2018 / 18TH ASHADHA, 1940 WP(C).No. 16111 of 2013** **PETITIONER(S)** **------------** **M.D.VAKKAN, THAKIDIVELIYIL, MARARIKULAM SOUTH, KALAVOOR P.O., ALAPPUZHA DT. 688 522.** **BY ADV.SRI.K.K.SATHEESH** **RESPONDENT(S):** **------------** **1. UNION OF INDIA, REPRESENTED BY THE DEPUTY SECRETARY TO GOVT., MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, NEW DELHI CITY CENTRE-II BUILDING, 2ND FLOOR,'A' WING, JAISINGH ROAD, NEAR YMCA, NEW DELHI-110 001.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT., GENERAL ADMINISTRATION (FF.P.A)DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1 BY BY ADVS. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA SRI.S.KRISHNAMOORTHY, CGC R2 BY GOVERNMENT PLEADER SRI.JESTIN MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 16111 of 2013 (L)** ## **--------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **EXT.P1 - TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 30-11-1982.** - **EXT.P2 - TRUE COPY OF THE APPLICATION 22-4-1998 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS.** - **EXT.P3 - TRUE COPY OF THE PKC ISSUED BY SRI.KUNJAN SUKUMARAN** - **EXT.P4 - TRUE COPY OF THE NARC FROM THE CJM COURT, ALAPPUZHA.** - **EXT.P5 - TRUE COPY OF THE PKC ISSUED BY SRI.NARAYANAN RAMANKUTTY** - **EXT.P6 - TRUE COPY OF THE JUDGMENT DATED 6-12-2004 PASSED BY THIS HON'LE COURT IN O.P.NO.8416/2003.** - **EXT.P7 - TRUE COPY OF THE PKC ISSUED BY SRI.H.K.CHAKRPANI** - **EXT.P8 - TRUE COPY OF THE ORDER NO.52/CC/K/41/2003-FF(SZ) DATED 30-6-2005 ISSUED BY THE 1ST RESPONDENT** - **EXT.P9 - TRUE COPY OF THE NARC ISSUED BY THE SUPDT. OF POLICE, ALAPPUZHA DATED 15-7-2005.** - **EXT.P10 - TRUE COPY OF THE JUDGMENT DATED 6-10-2008 PASSED BY THIS HON'BLE COURT IN WPC.NO.26483/2005** - **EXT.P11 - TRUE COPY OF THE ORDER NO.52/CC/K/122/2005-FF/SZ DATED 14-1-2009 ISSUED BY THE 1ST RESPONDENT** - **EXT.P12 - TRUE COPY OF THE LETTER NO.90320/FFP.A2/2005/GAD DATED 10-12-2009 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT** - **EXT.P13 - TRUE COPY OF THE ORDER NO.52/CC/K/122/2005/FF/SZ DATED 4-2-2010 ISSUED BY THE 1ST RESPONDENT** - **EXT.P14 - TRUE COPY OF THE JUDGMENT DATED 28-2-2012 IN WPC.NO.6920/2010 AND THE JUDGMENT DATED 13-2-2012 IN WRIT PETITION NO.258/2008 & CONNECTED CASES PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT.** - **EXT.P15 - TRUE COPY OF THE LETTER NO.66573/FFP.A2/2012/GAD DATED 26-9-2012 ISSUED BY THE STATE GOVT. TO THE PETITIONER** - **EXT.P16 - TRUE COPY OF THE LETTER NO.66573/FFP.A2/2012/GAD DATED 28-12-2012 ISSUED BY THE STATE GOVT. TO THE PETITIONER.** **TS** ## **WP(C).No. 16111 of 2013 (L) --------------------------** - **EXT.P17 - TRUE COPY OF THE ORDER NO.52/CC/K/68/2008-FF(SZ) DATED 3-4-2013 ISSUED BY THE 1ST RESPONDENT** **EXT.P18 - TRUE COPY OF THE LETTER NO.66573/FFP.A2/2012/GAD DATED 10-4-2013 ISSUED BY THE STATE GOVT. TO THE PETITIONER.** **EXT.P19 - TRUE COPY OF THE ORDER NO.52/CC/K/68/2008-FF(SZ) DATED 24-5-2013 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENT(S)'EXHIBITS** **----------------------** **EXHIBIT R1(A) TRUE COPY OF THE SALIENT FEATURES PENSION SCHEME 1980.** ## **/TRUE COPY/** **PS TO JUDGE** **TS** **17.07.2018** **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 16111 of 2013 ================== ## Dated this the 9[th] day of July, 2018 **J U D G M E N T** The petitioner, who claims to be a freedom fighter, who has participated in the Punnapra-Vayalar movement, is aggrieved by the impugned Ext.P-16 order dated 28.12.2012 issued by the 2[nd] respondent State Government, whereby the said authority has not forwarded the Non-availability of Records Certificate (NARC) to the 1[st] respondent Union Government for consideration of the petitioner's claim for grant of freedom fighter's pension under the “Swatantrata Sainik Samman (SSS) Pension Scheme, 1980. The prayers in this Writ Petition (Civil) are as follows: - _“i) declare that the petitioner is entitled to get the benefit of “Swatantrata Sainik Samman Pension (SSS Pension)._ - _ii) call for the records leading to the issue of Exhibits - P-16, P-17 & P-19 and quash its original by issuance of a writ of certiorari._ - _iii) Issue a writ of mandamus or other appropriate writ, direction or order compelling the 2[nd] respondent to forward a fresh verification cum entitlement to pension report along with the Non-availability of Records Certificate (NARC) in the prescribed manner duly recommending the petitioner's claim for SSS Pension and on receipt of the same, the 1[st] respondent may be directed to grant the SSS Pension to the petitioner with the actual arrears within a stipulate time.”_ 2. Heard Sri.K.K.Sathish, learned counsel appearing for the petitioner, Sri.Jestin Mathew, learned Government Pleader appearing for the 2[nd] respondent State and Sri.N.Nagaresh, learned W.P.(C)16111/13 - : 2 :- Assistant Solicitor General appearing for R-1 Union of India. 3. Earlier the petitioner's case was recommended by the State Government for grant of freedom fighter's pension under the Central scheme to the 1[st] respondent Union Government as per Ext.P-12 letter dated 10.12.2009. In many cases the respondent Union Government had objected to the manner, in which the NARC has been issued by the respondent State Government and therefore, the claims of applicants concerned were not considered and this resulted in a series of writ litigative proceedings, which ultimately culminated in Ext.P-14 series of judgment dated 28.2.2012 of the Division Bench of this Court W.P.(C).No. 6920/2010 and connected cases, which were in turn disposed of in the light of the earlier common judgment dated 13.2.2012 of the Division Bench in W.A.No. 382/2010 and connected cases. The operative portion of the directions issued by the Division Bench in that judgment was to the following effect: _“65....... State machinery has to first look into the applications submitted by the writ petitioners along with the documents and if any defects are found they must intimate the concerned persons to rectify or cure the defects within a reasonable time, thereafter, from the date of rectification of the defects within next three months, the State shall consider and forward the applications in accordance with the procedure contemplated under the Scheme, including issuance of NARC. ......”_ In purported compliance of the directions of the abovesaid Division Bench judgment, the State Government had issued the impugned W.P.(C)16111/13 - : 3 :- Ext.P-16 letter dated 28.12.2012, wherein they have refused to forward NARC in the prescribed format to the respondent Union Government. However, strangely enough, the 2[nd] respondent State authorities have forwarded the application of the petitioner to the respondent Union Government, but without the NARC. Forwardal of the NARC by the respondent State authorities is mandatory in order to effectuate consideration on merits of the claim of the applicant for the grant of freedom fighter's pension by the competent authority of the respondent Union Government. 4. In the instant case, the petitioner's claim was that he had remained underground for the period from October 1946 to October, 1947 on account of a pending warrant of arrest issued against him because of his participation in Punnapra-Vayalar movement, which led to the initiation of case No.PE 7/1122 ME, on the file of the Special Magistrate's Court, Alappuzha and. There was no direct evidence available in the matter, as he had claimed that he had remained underground and so it was not possible to produce any primary evidence and therefore, as the rules permitted, the petitioner had produced Personal Knowledge Certificate (PKC) from the three eligible freedom fighters, who took part in the same freedom movement, viz., (1) Narayanan Ramankutty, (2) Kunjan Sukumaran W.P.(C)16111/13 - : 4 :- and (3) and H.K.Chakrapani, all of whom had certified the fact that the petitioner had remained underground for the abovesaid period due to issuance of warrant of arrest against him, on account of his participation in the abovesaid freedom movement. However, the State Government authorities, while issuing Ext.P-16 letter, had found that in the application, which was earlier submitted by the petitioner for the grant of State freedom fighter's pension under the State Scheme, he had mentioned the period remaining underground as from October 1946 to August, 1948. Apart from that, it is clearly stated that there was a letter issued by the District Collector, Alappuzha informing that the original of the personal knowledge certificate (PKC) issued by Sri.H.K.Chakrapani and the non-availability records certificate from the Superintendent of Police, Alappuzha, were forwarded to the Government vide their letter dated 18.11.2006 of the District Collector. This can be seen from the last paragraph of page 2 of Ext.P-16. So also, it is stated in the top portion in first para in page 2 of Ext.P-16 that in support of his claim, he had produced PKC issued by the abovesaid persons and copies of the NARC from the CJM Court, and Special Sub Jail, Alappuzha were also made available. 5. The learned counsel appearing for the petitioner submits that the entry in the application, which was earlier submitted by the W.P.(C)16111/13 - : 5 :- petitioner, before the respondent State authorities for grant of State freedom fighter's pension it was erroneously mentioned that the period of underground subsisted upto August, 1948, whereas as a matter of fact, the petitioner had remained underground only for the period from October,1946 to October,1947 and that this has been consistently certified by three eligible certifiers in terms of the Central Scheme. The petitioner would also place reliance on the judgment dated 30.5.2018 rendered by this Court in W.P.(C).No. 10470/2013, wherein the rejection of the claim for Central freedom fighter's person in respect of a similar claimant, who participated in the same movement, was set aside by this Court and had directed the competent authorities of the respondent Union Government to grant pension under the Central scheme to the petitioner therein. In that case, PKC was issued by Sri.Narayanan Ramankutty, who is also one of the certifiers, and who had initially issued PKC in the case of the petitioner. The said judgment dated 30.5.2018 in W.P.(C).No. 14070/2013 reads as follows: _“The petitioner was a freedom fighter. The petitioner claimed that he had participated in Punnapra Wayalar struggle. The petitioner submits that he remained in underground for more than six months from October 1946 to June 1947 in connection with case No. PE 7/1122 ME. Therefore, he claims that he is eligible for SSS Pension._ _2. The State Government recommended the petitioner's case. The State Government also gave the reasons for making such recommendations. The petitioner relied on personal knowledge certificate issued by Narayanan Ramankutty. The certified jail extract and details of SSS pension received by him were also examined by the State Government._ W.P.(C)16111/13 - : 6 :- _It is after examination of materials as above, the State Government recommended the Central Government to grant pension to the petitioner. The State Government also certified that the official records in the relevant time are also available._ _3. However, The Central Government rejected the pension stating that the recommendation of the State Government was more of formality rather than assurance of compliance of the mandate of SSS Scheme. It was further observed that personal knowledge certificate should not be taken as genuine or conclusive proof as if it was obtained without much effort. The Central Government also entertained a doubt whether he has suffered underground suffering._ _4. On examination of Ext P3 it can be found that the Central Government had not adverted to the reasoning given in the recommendation of the State Government. In fact, State Government had adverted all aspects relatable to the eligibility of certifier as well as other provisions of SSS Scheme. The crucial aspect is that the certifier was a SSS Pension recipient and his certified jail extracts were overlooked by the Central Government while rejecting the application._ _In such circumstances, this court is of the view that the impugned order has to be set aside declaring that the petitioner is entitled for SSS Pension in accordance with the scheme. The pension shall be released to the petitioner within a period of three months._ _The Writ Petition is disposed of as above.”_ 6. Sri.K.K.Satheesan, learned counsel appearing for the petitioner would submit that the petitioner is not placing any reliance on the PKC issued by H.K.Chakrapani and that he places reliance essentially on the PKC issued by Sri.Narayanan Sivaramankutty as well as that issued by Sri.Kunjan Sukumaran. The jail certificate pertaining to Kunjan Sukumaran has also been acknowledged by the State Government in Ext.P-18 letter dated 10.4.2013. Ext.P-9 produced herein is the copy of the NARC issued by the Superintendent of Police, Alappuzha, etc. The petitioner would urge that the rejection of his claim on account of the fact that he had erroneously shown the period of remaining underground while W.P.(C)16111/13 - : 7 :- submitting his application under the State scheme, is illegal and improper and that the petitioner may be given an opportunity to explain to the competent authority of the respondent State Government that the said entry in the said application filed before the State Government under the different scheme was admittedly an error and that matter should reconsidered. As the petitioner has placed reliance on PKC issued by Sri. Narayanan Ramankutty, which in turn has been found to be credible and believable in the case of another claimant as per the judgment of this Court in W.P. (C).No.14070/2013 and as the respondent State authorities have refused to issue the NARC in spite of clearly stating about the availability of NARC issued from the CJM's Court, Sub Jail Alappuzha and from the Superintendent of Police, Alappuzha, etc., this Court is convinced that the matter requires a remit in order to ensure serious reconsideration of the matter at the hands of the respondent State Government. 7. This Court has also held in the case in _**Kathreena Gregory v. Union of India**_ , reported in 2007 (4) KLT 824 that merely because there is a minor mistake in the dates regarding the underground suffering in the application, recommendation by the State Government to the Central Government should not be withheld in the claims under the SSS Pension Scheme 1980. Therefore, for W.P.(C)16111/13 - : 8 :- these reasons, the impugned decision of the State Government in refusing to recommend the petitioner's case merely on account of the discrepancy regarding the period of remaining underground is held to be unreasonable and arbitrary. 8. Accordingly, the decision of respondent No.2 as referred to in Ext.P-16 letter dated 28.12.2012 refusing to forward the NARC of the petitioner will stand quashed. Consequential orders of the 1[st] respondent Union Government as per Exts.P-17 and P-19 also will stand set aside. 9. The matter will stand remitted to the competent authorities of the State Government for consideration of the matter afresh. In that regard, it has to be borne in mind that, in a previous round of writ proceedings initiated by the petitioner this Court had clearly commented in para 3 of Ext.P-10 judgment dated 6.10.2008 in W.P.(C).No. 26483/2005 that it may be that the petitioner herein has shown a lesser period of suffering than what was shown in the application for State Pension and that what is required under the Scheme is the Personal Knowledge Certificate and the valid NARC. This conclusive finding of this Court in para 3 of Ext.P-10 judgment has been completely ignored by the respondent State Government while issuing Ext.P-16 letter. Therefore, the alleged contradiction in W.P.(C)16111/13 - : 9 :- the details shown in the petitioner's application earlier given in the State scheme as compared to his present application given in the Central Scheme with respect to the period of remaining underground, may not have much bearing or relevance. The State Government should bear in mind the observations made by this Court in para 3 of Ext.P-10 judgment while dealing with the variance in the details of his remaining underground in his State application compared to that shown in the Central application. The petitioner may produce copies of documents like Ext.P-9 pertaining to the certificate issued by the Superintendent of Police Alappuzha, regarding the non availability of records certificate from that office as well as the other details shown in page 2 of Ext.P-16. The matter has to be considered afresh and the authenticity of the PKC issued by Sri.Narayanan Ramankutty may also be assessed in the light of the conclusive findings made by this Court in the judgment dated 30.5.2018 in W.P.(C).No. 14040/2013. The petitioner should be afforded a reasonable opportunity of being heard in the matter by the competent authority of the respondent State Government in the matter either in person or through authorised counsel. Before taking decision in the matter, the fact that the petitioner is a recipient of pension under the State Scheme, should also be duly adverted to and considered by the State W.P.(C)16111/13 - : 10 :- Government and then take a fair and just decision in the matter of issuance of NARC to the petitioner in the prescribed format and in the matter of recommendation to be made to the 1[st] respondent Union Government. The decision in that regard should be rendered by the competent authority of the State Government within a period of two months from the date of production of a certified copy of this judgment. A copy of the communication of the State Government in that regard should also be forwarded to the petitioner by registered speed post. In case the competent authority of the State Government makes a positive recommendation in the case of the petitioner along with the requisite NARC in the prescribed format, then the competent authority of the Union Government will take a decision in the matter in accordance with the said Central Scheme, within a period of six weeks from the date of receipt of the communication in that regard that may be issued by the 2[nd] respondent State Government. While taking a decision as aforesated, the competent authority of the respondent Union of India should also bear in mind the judgment dated 30.5.2018 rendered by this Court in W.P.(C).No. 10470/2013. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge