Padmakshy Kesavan v. Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932** **WP(C).No. 27008 of 2009(U)** **----------------------------------------** **PETITIONER(S):** **------------------------** **PADMAKSHY KESAVAN, AGED 79,VADAKUPURATH KARIYIL, THANNEERMUKKOM P.O.,CHERTHALA.** **BY ADV. SRI.J.OM PRAKASH** **RESPONDENT(S):** **----------------------------** **THE UNION OF INDIA, REP.BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI.** **ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.27008/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE LETTER OF THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 4.8.73 ASKING TO receive THE THAMARAPATHRAM.** **P2:- COPY OF THE ORDER GRANTING STATE PENSION ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 16.7.72.** **P3:- COPY OF THE CERTIFICATE ISSUED BY THE SUB JAIL SUPERINTENDANT, ALAPUZHA DTD. 7.7.73.** **P4:- COPY OF THE APPLICATION AND THE ORDER IN P.E. NO.8/1122 OF THE C.J.M. COURT, ALAPPUZHA DTD. 16.10.2006.** **P5:- COPY OF THE CERTIFICTE OF SRI. P.A.SOLOMON EX.M.P. DTD. 16.4.2005.** **P6:- COPY OF THE REPORT NO.D4 261/71 OF THE TAHSILDAR, CHERTHALA DTD. NIL.** **P7:- COPY OF THE JUDGMENT IN WPC. NO.6510/2007 DTD. 22.2.2008.** **P8:- COPY OF THE LETTER OF THE ADDITIONAL SECRETARY DTD. 13.6.08.** **P9:- COPY OF THE ORDER OF THE DEPUTY SECRETARY TO GOVERNMENT OF INDIA DTD. 19.6.2009.** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.27008/2009-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~** ## **Dated this the 11[th] day of October, 2010** ## **J U D G M E N T** The challenge in this writ petition is against the order refusing the grant of pension under the Swatantrata Sainik Samman Pension Scheme (Ext.P9). 2. The petitioner is the widow of late Shri Kesavan. He was a freedom fighter who had actively participated in the Punnapra-Vayalar Struggle. It is averred that the police arrested him as an accused in case No.P.E.8/1122 M.E of the Special Magistrate Court, Alappuzha and kept him as an under trial prisoner in the Alappuzha Sub Jail (defunct police lock-up) from December 1946 to September 1947. In Ext.P9 order, inspite of the recommendation of the State Government, the reasons for rejection are as follows:- i. The petitioner has not furnished Primary Evidence in support of the claimed underground suffering. ii. The petitioner has not provided acceptable Secondary Evidences. The NARC given by CJM or Jail Superintendent is not acceptable and in the absence of prescribed NARC from the State Government, the PKCs cannot be considered. Further, the certifiers have not provided records ## W.P.(C). No.27008/2009 ## -:2:- to prove their own jail suffering for a period of at least 2 years. iii. The Government of Kerala has recommended her claim on the basis of report of Tahsildar. However, the imprisonment certificate has not been provided. As per the said report, the Tahsildar has recommended the claim subject to proof of imprisonment. It transpires that the proof was not produced before the Tahsildar. Thus the claim lacks any evidence to substantiate the undertrial suffering and the recommendation of the S/G appears ambiguous in as much as the same is not based on any documentary evidence.” 3. It is a case where the petitioner's late husband was _Tamra Pathra_ holder as evident from Ext.P1. By Ext.P2, State Pension was granted by the State Government to late Shri Kesavan. Ext.P3 is the NARC produced from the Superintendent, Sub Jail, Alappuzha. The Personal Knowledge Certificate is one issued by Shri P.A.Solomon, Ex.M.P., a copy of which is produced as Ext.P5. Ext.P6 is the report made by the Tahsildar wherein it is mentioned that the applicant has participated in the Punnapra-Vayalar Struggle and undergone imprisonment for ten months. 4. The petitioner had to approach this Court earlier by filing W.P.(C).No.6510/2007 which was disposed of by ## W.P.(C). No.27008/2009 -:3:- Ext.P7 Judgment. Earlier the State Government did not recommend the application and by the said Judgment this Court directed the second respondent-State Government therein to forward fresh verification-cum-entitlement report after examining the original file maintained by the District Collector, Alappuzha. 5. The learned counsel for the petitioner submitted that in the light of the findings rendered by this Court in Ext.P7 Judgment, the denial of the claim based on absence of Primary Evidence is not correct. 6. Paragraph (5) of the said Judgment shows that this Court called for the original file leading to Ext.P9 produced in the said writ petition, which is produced as Ext.P6 here. The endorsement in Ext.P6 against column No.1 is as follows:- **==> picture [326 x 11] intentionally omitted <==** Vayalar Struggle and undergone imprisonment for 10 months.” It is in that circumstances, the original file leading to the same was produced by the learned Government Pleader. Therein it was found that “the order sanctioning the pension which is part of the original of Ext.P9, contains an endorsement which reads as follows: _'He participated in Punnapra Vayalar struggle. He was in custody for more than_ W.P.(C). No.27008/2009 -:4:- _six months. His name appears in the police list as item No.74, category 4. This is also testified by Shri Paraman, Member. Sanctioned. Signed. 18..1972.'_ ” After referring to the same this Court found in paragraph (6) as follows:- “6. Obviously, the above endorsement was made with reference to the official records available with the District Collector which shows that he was in custody for more than six months which is sufficient for considering grant of S.S.S pension also. ........” Therefore, the rejection of the claim for absence of any Primary Evidence or production of any other documents before the Tahsildar cannot be supported. Evidently, the Tahsildar has processed the report after verifying other records. The petitioner cannot be found fault for not producing original records of half a century ago. The available materials show that he had undergone imprisonment for more than six months. 7. The next aspect is regarding the validity of the NARC from the Jail authorities and Personal Knowledge Certificate issued by Shri P.A.Solomon, Ex.M.P.. With regard to the question whether the certifier, who is an Ex.M.P., has to prove jail suffering for a period of at least 2 years, was considered by this Court in **Lennyamma v.** W.P.(C). No.27008/2009 -:5:- ## **Union of India and Others [2009 (2) KHC 746]** . Paragraph No.6 of the judgment reads as follows:- “6. In the first condition the applicant shall produce a Co-prisoner's Certificate, who had a proven jail suffering of one year. If such certificate is not available, the other option is given to the applicant, i.e., 2[nd] condition extracted above. By that condition one Coprisoner's certificate from a sitting MP or MLA or from an Ex-MP or Ex-MLA specifying his jail period and that of the applicant shall be produced. There is difference between the two conditions mentioned above. In the 2[nd] condition the period of stipulation of minimum period of one year is absent, instead the MP or MLA or Ex-MP or Ex-MLA are directed to specify the jail period and that of the applicant. Therefore, it is very clear that the minimum period of one year imprisonment is applicable only in the case of certificates issued by other persons other than MP or MLA or Ex-MP or Ex-MLA. The Scheme stipulates certificate from MPs or MLAs, but there is no condition that MP or MLA should have undergone imprisonment for a minimum period of one year. It is also noticed that in case of recipient of pension under the very same scheme by the certifier, there is no necessity for the applicant to produce any other documents in order to show that the certifier had undergone imprisonment. If he is recipient of central pension that itself go to show that he had undergone imprisonment for minimum period of not less than six months.” ## W.P.(C). No.27008/2009 -:6:- The same will apply to the facts of this case also. Therefore, it cannot be denied that Shri P.A.Solomon, Ex.M.P. is a valid certifier and he was granted Central Freedom Fighters' Pension as is evident from Ext.P5 itself as per the proceedings of the Ministry of Home Affairs dated 13/07/1999. Apart from that in the light of the above Judgment it can also be clearly found that Shri P.A.Solomon, Ex.M.P. is an eligible certifier. Therefore, the said objection cannot survive. 8. It is a case where the State Government has clearly recommended the application. In the absence of primary evidence, the Personal Knowledge Certificate along with NARC from the concerned authorities can be accepted. With regard to the validity of the NARC also the issue is covered in favour of the petitioner in the light of the Judgment in **Lennyamma's** case (supra) wherein in paragraph No.3, it was held thus:- “3. Clause 9 of the Scheme stipulates the production of NARC from one of the 3 authorities namely, Jail Authorities, District Magistrates or the State Government. The insistence of NARC from the State Government in paragraph 5 of Ext.P9 order cannot stand, in view of the provisions of the Scheme. When the three authorities are conferred with power to issue certificates, the Central Government has no authority to insist that the applicant should produce a certificate from the ## W.P.(C). No.27008/2009 -:7:- State Government. It is the duty of the NAR Certifier certifying Non-Availability of Records. Before issuing such certificate the authority should ensure that the records are not available in any office maintained by the State Government in connection with the detention of the applicant. The details regarding the detention of the applicant are usually maintained in the offices of jail, District Collector, Superintendent of Police, State Government, etc. The duty of one of the authorities is to issue certificate after ensuring that no records are available in respect of the details regarding the detention of the applicant. ...........” I respectfully agree with the same. Therefore, the rejection of the claim on the absence of NARC from State Government is immaterial. All the factors have been proved by the petitioner and the rejection of the claim, therefore, cannot be supported. In that view of the matter, the NARC produced by the petitioner has to be treated as valid. That the application shall not be rejected on technical pleas is also well settled by the decisions of the Apex Court in **Mukund Lal Bhandari and** **Others v. Union of India and Others [AIR (1993) SC 2127], Gurdial Singh v. Union of India and Others [2001 (8) SCC 8]** and a recent decision of this Court in **Devaki v. Union of India (2010 (3) KHC 823)** . In that view of the matter, the W.P.(C). No.27008/2009 -:8:- petitioner is entitled to succeed in the writ petition. Ext.P9 is therefore, quashed. 9. There will be a direction to the respondent to sanction pension under the Swatantrata Sainik Samman Pension Scheme to the petitioner in recognition of her husband's jail suffering in the freedom struggle. Entitlement for arrears from the date of receipt of the application, namely, 04/05/1998 will be verified and sanctioned accordingly. Appropriate orders will be passed as above within two months from the date of receipt of a copy of this Judgment and the amount will be disbursed to the petitioner. The writ petition is allowed. No costs. **(T.R. Ramachandran Nair, Judge.)** ms ## W.P.(C). No.27008/2009 -:9:- (a) the petitioner has not furnished Primary Evidence, (b) the petitioner has not provided acceptable Secondary Evidences. The NARC from CJM or Jail Superintendent is not acceptable and the Certifiers have not proved the jail suffering for a period of at least 2 years.