Maniyamma (W/o Mukundan) 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 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932** **WP(C).No. 15403 of 2010(A)** **---------------------------------------** **PETITIONER(S):** **----------------------** **MANIYAMMA, W/O.MUKUNDAN, AGED 72, VAIKYATHUPARAMBIL, MUHAMMA P.O., CHERTHALA, ALAPPUZHA.** **BY ADV. SRI.J.OM PRAKASH** **RESPONDENT(S):** **-------------------------** **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, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI SRI.S.KRISHNAMOORTHY, CGC R2 BY GOVERNMENT PLEADER SRI.K.SANIL KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C) NO. 15403/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE APPLICATION DATED 25/6/1998 SUBMITTED BY SRI. MUKUNDAN.** - **P2 COPY OF THE LETTER ISSUED BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA DATED 5/1/1999.** - **P3 COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDANT, CENTRAL PRISON, THIRUVANANTHAPURAM DATED 2/2/2007.** - **P4 COPY OF THE REPRESENTATION OF THE PETITIONER DATED 20/8/2007.** - **P5 COPY OF THE ORDER OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 15/5/2008.** - **P6 COPY OF THE JUDGMENT IN WP(C) NO. 2206/2008 DATED 10/3/2010.** - **P7 COPY OF THE ISSUED BY THE DEPUTY SECRETARY TO GOVERNMENT OF INDIA DATED 4/5/2010.** - **P8 COPY OF THE LETTER DATED 15/12/2009 OF THE SECRETARY TO GOVERNMENT.** - **P9 COPY OF THE TRUE EXTRACT OF THE CONVICT REGISTER RELATING TO VELU MADHAVAN ISSUED BY THE SUPERINTENDANT, CENTRAL PRISON, TRIVANDRUM DATED NIL.** ## **RESPONDENT'S EXHIBITS:** ## **R1(A) COPY OF THE SALIENT FEATURES OF THE SCHEME.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 15403 of 2010-A** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of November, 2010.** ## **JUDGMENT** The petitioner is the widow of late Shri Mukundan who was an active participant in the Punnapra Vayalar Struggle. It is averred that he was an accused in C.C. No.8/1124 of First Class Magistrate Court, Cherthala and was sentenced to undergo imprisonment for six months and kept in Central Jail, Thiruvananthapuram. Finally he was released on 8.11.1124 on expiry of the sentence. Ext.P1 is the true copy of the application filed by the deceased and Ext.P2 is the copy of the letter of acknowledgment issued by the first respondent. The husband of the petitioner died on 13.11.1998. In the application for pension, the underground suffering was shown as one year from 7.3.1122 to 6.3.1122 in Case No.PE 7/1122. 2. When the petitioner obtained the primary evidence by way of a certificate from the jail authorities, a copy of which is produced as Ext.P3, that was produced before the authorities concerned and Ext.P4 is the copy of the representation submitted by the petitioner. Based on Ext.P3 certificate pension under Kerala Freedom Fighters Pension Scheme was also granted to the petitioner as per Ext.P5. wpc 15403/2010 2 3. Earlier the petitioner approached this Court by filing W.P.(C) No.2206/2008 which was disposed of by Ext.P6 judgment recording the fact that the State Government has forward the verification-cum-entitlement report and thereby directing the Central Government to pass the final order. The positive recommendation forwarded by the State Government, is evident from the copy of the report Ext.P8 produced along with I.A. No.16237/2010. As per Ext.P7, the first respondent rejected the application. In Ext.P7 the Central Government took the view that the conviction is for a period less than six months. 4. Learned counsel for the petitioner submitted that the finding that the conviction is for a period less than six months, is not correct. Exts.P3 certificate and P8 verification-cum-entitlement report are relied upon by the learned counsel for the petitioner to contend for the position that the first respondent committed an error in holding so. 5. Ext.P3 certificate issued by the Superintendent of Central Prison, Thiruvananthapuram will show that the deceased Kesavan Mukundan was convicted and sentenced to 6 months SI in C.C. No.8/124 on 9.5.1124 of the First Class Magistrate, Cherthala. He was admitted in the prison on 12.6.1124 (12[th] Makaram 1124) as Convict No.7. Finally, it is stated that he was released on 8.11.1124 on expiry of sentence. Learned counsel wpc 15403/2010 3 submitted that obviously the Central Government has calculated the period only from the date when he was admitted to prison, viz. 12.6.1124 and not from 9.5.1124. It is pointed out that actually he was under custody and the release on 8.11.1124 would indicate that he served the jail term of six months also. It is pointed out that evidently he was not released prematurely by way of granting remission. 6. These facts are evident from the report forwarded by the State Government (Ext.P8). In Ext.P8 reference is made to the report of the District Collector, Alappuzha also which states that the petitioner's husband had participated in the Punnapra-Vayalar struggle and suffered six months imprisonment. His name was included in C.C. No.8/124 as per the register relating to Punnapra-Vayalar struggle kept in the office of the District Collector, Alappuzha. Finally, it is stated that on verifying the extract of the register furnished by the Superintendent, Central Prison, Thiruvananthapuram it is seen that the petitioner's husband had undergone simple imprisonment for six months from 9.5.1124 to 8.11.1124 in Case No.8/124. 7. In the counter affidavit also, it is mentioned by the first respondent that actually the petitioner's husband was admitted to jail “on 12.5.1124 and released on 8.11.1124 and therefore the period of sentence is wpc 15403/2010 4 below six months.” 8. Evidently the fact that he had completed the jail term of six months, is overlooked by the Central Government. This fact is evident from the entry regarding the date of release, viz. 8.11.1124. Therefore the conclusion is clearly overlooking the fact that he had only served the jail term of six months. If it was a premature release, by granting remission, it would have been certified. 9. In similar circumstances this Court in W.P.(C) No.12538/2010 in relation to convict No.6, viz. Velu Madhavan, held as follows in para 9: “9. Evidently, the date of sentence is 9[th] Dhanu, 1124 (corresponding to 9.5.1124) and the release was on 8.11.1124. Hence, the six months period is satisfied. The period cannot be calculated from 12.6.1124, viz. the date of admission since it can be evidently seen that the release was not a premature one. It is recorded in column 23 of the convict register that his release was on expiry of sentence. In that view of the matter, it can be safely concluded that the late freedom fighter was released only after the expiry of sentence of six months. The sentence was for a period of six months as evident from column 16. Hence, it is evident that he was in custody prior to the date of admission into jail.” The same reasoning will apply to the facts of this case also. The words “on expiry of sentence” in Ext.P3 indicates that he had served the jail term. wpc 15403/2010 5 Otherwise it will be a purely technical view. 10. In that view of the matter, it is clear that the deceased had served the jail term of six months and hence the denial of pension is really unjust. It may be true that the deceased had initially claimed only underground suffering in the application. It is clearly explained by the petitioner that at that point of time the extract of convict register and jail certificate were not available. Therefore, the said fact cannot go against the plea of the petitioner in the light of the fact that primary evidence is available. 11. Therefore, Ext.P7 is quashed. There will be a direction to the first respondent to sanction the pension and grant the benefits within a period of two months from the date of receipt of a copy of this judgment. With regard to the entitlement of the petitioner for arrears of pension, learned Central Government Standing Counsel relied upon the decision of the Apex Court in **Union of India and another v. Kaushalaya Devi** {(2007) 9 SCC 525}. It is made clear that it is for the Central Government to consider all those aspects, in accordance with law. The writ petition is allowed as above. No costs. **(T.R. Ramachandran Nair, Judge.)** wpc 15403/2010 6 ## **kav/**