PALLIKKATHODY MADHAVI AGED 83 YEARS W/O CHOORAPPARA VELAYUDHAN, CHOORAPPARA HOUSE, ERUMAMUNDA P.O, CHUNGATHARA, MALAPPURAM vs. UNION OF INDIA and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** ## **WP(C).No. 29530 of 2018** ## **PETITIONER:** **PALLIKKATHODY MADHAVI AGED 83 YEARS W/O.CHOORAPPARA VELAYUDHAN, CHOORAPPARA HOUSE, ERUMAMUNDA P.O, CHUNGATHARA, MALAPPURAM** **BY ADVS. SRI.T.G.SUNIL (PRANAVAM) C.X.ANTONY BENEDICT SRI.J.OMPRAKASH MAHESH T.G. MANOJ T. G. SANTHOSH T.G.** ## **RESPONDENTS:** **1 THE UNION OF INDIA REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, LOK NAYAN BHAVAN, KHAN MARKET, NEW DELHI 110003 2 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **SRI.JAISHANKAR V.NAIR, CGC FOR R1, SMT.A.C.VIDHYA,GOVT.PLEADER FOR R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 29530 of 2018** **2** ## **(CR)** ## **ALEXANDER THOMAS, J.** **============================= W.P(C)No.29530 of 2018 ============================= Dated this the 03[rd] day of December, 2018** ## **JUDGMENT** The petitioner, who is the widow of a deceased freedom fighter, is aggrieved by the stand of the 1[st] respondent-Union Government to the limited extent she has been granted Freedom Fighters’ Dependent Pension under the Central Scheme only with effect from the date of sanction of the order and not with effect from the date of receipt of her application. The basis of the petitioner’s claim is that she had duly submitted Ext.P-2 application dated 06.12.2004 before the respondents, along with the requisite certificate as per Ext.P-1 showing that the petitioner’s deceased husband was dismissed from the Malabar Special Police **WP(C).No. 29530 of 2018** **3** with effect from 20.04.1946, on account of his participation in the Malabar Special Police strike. Accordingly, it is submitted by the petitioner that since the petitioner had produced necessary primary evidential material to prove her claim and since the claim was accepted, the 1[st] respondent was legally obliged to grant the Freedom Fighters’ Dependent Pension, not merely from the date of sanction order, but with effect from the date of receipt of Ext.P-2 application dated 06.12.2004. 2. The prayers in this Writ Petition (Civil) are as follows: - _**“i) Issue a writ of mandamus or other appropriate writ order or direction, directing the first respondent to grant pension to the petitioner from 1.1.2005 under the Swathanthrata Sainik Samman Pension Scheme;**_ - _**ii) Direct the 1[st] respondent to grant arrears of pension from 1.1.2005 to**_ **WP(C).No. 29530 of 2018** **4** ## _**2.11.2015;**_ _**iii) Direct the 1[st] respondent to pay cost to the petitioner;**_ _**iv) and grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”**_ 3. Heard Sri.J.Omprakash, learned counsel appearing for the petitioner, Sri.Jaishankar V.Nair, learned Central Government Counsel appearing for R-1 (Union Government) and Smt.A.C.Vidhya, learned Government Pleader appearing for R-2 (State). 4. The petitioner’s deceased husband Sri.Choorappara Velayudhan while working as Constable under the Malabar Special Police (MSP), had participated in the Malabar Special Police (MSP) strike in connection with the National Freedom Fighters’ Movement and hence, he had to suffer dismissal from service, as per order No.DEO 449/1946 dated 16.03.1946, as **WP(C).No. 29530 of 2018** **5** evident from Ext.P-1 certificate dated 04.05.1981 issued by the office of the Commandant, Malabar Special Police, Malappuram. It is a well-known historically recognized aspect that the MSP strike by the personnel of the Malabar Special Police was on account of the participation in the National Freedom Movement. The MSP strike was not earlier recognized by the competent authority of the 1[st] respondent-Union Government to be part of the National Freedom Movement for the purpose of eligibility for grant of Freedom Fighters’ Pension under the Central Swatantrata Sainik Samman (SSS) Pension Scheme, 1980 or of the previous version of the said central rules, which was in vogue from 1972. It was for the first time, the competent authority among the 1[st] respondent- **WP(C).No. 29530 of 2018** **6** Union Government had recognized the MSP strike as part of the National Freedom Movement, as per proceedings dated 20.02.1998 issued by the 1[st] respondent. The petitioner’s husband had died on 19.05.1986, after the recognition of the MSP strike, as per the abovesaid proceedings dated 20.02.1998. Thereafter, the petitioner, as the widow had submitted Ext.P-2 application dated 06.12.2004 before the respondents for grant of Freedom Fighters’ Dependent Pension under the Central Scheme. The said application was accompanied by Ext.P-1 certificate, as can be seen from the reference made in internal page No.3 of Ext.P-2 application. The 2[nd] respondent-State Government had forwarded the said Ext.P-2 application of the petitioner, as per Ext.P-3 **WP(C).No. 29530 of 2018** **7** Government letter No.106612/FFP A3/2004/GAD dated 19.09.2005 to the competent authority of the 1[st] respondent-Union Government. Thereafter, since no action was forthcoming for a very long time, the petitioner was constrained to file writ petition (civil) as W.P(C)No.19723/2012 before this Court. This Court as per Ext.P-4 judgment rendered on 22.01.2014 had disposed of W.P(C)No.19723/2012, by directing the 2[nd] respondent-State Government to forthwith submit the verification, entitlement report, in favour of the petitioner and thereafter, that the 1[st] respondent-Union Government will take a decision on the said application. The certificate as per Ext.P-1 herein has been produced as Ext.P-1 in Ext.P-4 W.P(C), the application as per Ext.P-2 herein has been **WP(C).No. 29530 of 2018** **8** produced as Ext.P-3 therein and the State Government's forwarded letter dated 19.09.2005, as per Ext.P-3 herein has been produced as Ext.P-5 therein. A perusal of Ext.P-4 judgment would disclose that the stand taken by the 2[nd] respondent-State Government was that they had duly forwarded the petitioner’s application, as per the said letter dated 19.09.2005 as per Ext.P-3 herein. Whereas the stand taken by the 1[st] respondent- Union Government was that they had never received any such application and that was the reason which disabled them from considering the claim on merits. Without entering into that controversy, this Court had directed as per Ext.P-4 judgment that the 2[nd] respondentState Government should sent an authenticated copy of the verification entitlement report, **WP(C).No. 29530 of 2018** **9** with all the enclosures, as per the Central Scheme to the 1[st] respondent-Union Government to enable the 1[st] respondent-Union Government to take a decision on the application, etc. Thereafter, being fully satisfied about the petitioner’s eligibility and entitlement, the 1[st] respondent-Union Government has passed Ext.P-5 proceedings dated 04.11.2015 sanctioning Freedom Fighters’ Dependent Pension to the petitioner, but only with effect from the date of issuance of Ext.P-5 sanction order dated 04.11.2015. The petitioner would contend that going by the very nature of the claim to prove participation in the MSP strike, all what is required is only a certificate from the Commandant of the MSP, evidencing the factum of dismissal of the incumbent concerned on **WP(C).No. 29530 of 2018** **10** account of his participation in the historical MSP strike. The said position canvassed by the petitioner is correct. Hence, Ext.P-1 is a primary piece of evidential material, which is acceptable in terms of the scheme and nothing could have been produced by any claimant, more so particularly since the MSP strike was recognized by the 1[st] respondent-Union Government for the first time only as per proceedings dated 20.02.1998. Therefore, by the efflux of time, the only primary evidential material that could have been produced was a certificate in the nature of Ext.P-1 issued by the competent officers of the Malabar Special Police. However, the specific contentions of the 1[st] respondent to resist the plea that the petitioner is entitled for grant of pension from the date of **WP(C).No. 29530 of 2018** **11** application is that the very application was received by them only pursuant to Ext.P-4 judgment dated 22.01.2014 and that they had never received it earlier. Whereas, the petitioner has asserted that she had submitted Ext.P-2 application dated 06.12.2004, along with Ext.P-1 certificate, which was duly forwarded by the 2[nd] respondent-State Government, as per Ext.P-3 Government letter dated 19.09.2005. 5. The 2[nd] respondent-State Government has filed a statement dated 01.10.2018 in the matter, wherein it is clearly averred that the respondent-State Government had duly forwarded the petitioner’s application vide Ext.P-3 letter dated 19.09.2005. Further, it is stated that because of the long efflux of time, the original files in relation to **WP(C).No. 29530 of 2018** **12** Ext.P-3 State Government letter dated 19.09.2005 are not immediately traceable and may have been missing/destroyed, etc. But one thing is clear like the day light and it is that the 2[nd] respondent-State Government has also asserted that they have duly forwarded the petitioner’s application, as per Ext.P-3 Government letter dated 19.09.2005. So it can be safely inferred that Ext.P-2 application dated 06.12.2004 would have reached the respondents, atleast by the end of December, 2004 or well before 01.01.2005. 6. The Division Bench of this Court has considered a similar case and has held that the mere fact that the application in such cases was not received by the respondent-Union Government is no ground to refuse the grant of the pensionary benefits to the freedom fighter **WP(C).No. 29530 of 2018** **13** with effect from the date of application and not merely from the date of the sanction order. The said legal position has been so laid down by the Division Bench of this Court in the judgment in _**Union of India v. Janakidas & others**_ reported in **2010 KHC 6120 = 2010 (1) KLT SN 95.** As can be seen from a reading of paragraph.5 of the said judgment of the Division Bench in _**Janakidas’s case**_ **(** supra), the contention raised by the appellant-Union Government therein was that the applications are to be received by the State Government and that the Central Government cannot be mulcted with the responsibility of paying pension from the date of such application at least in cases where there is considerable delay in forwarding the application with report to it. The Division Bench of this Court after **WP(C).No. 29530 of 2018** **14** referring to the provisions of Article 51A of the Constitution of India, regarding the fundamental duties of the citizens to cherish and bound the noble ideals which inspired our national freedom struggle, etc., held that there cannot be any legal ground even for the Union Government to show that any delay that the State Government had committed in forwarding the papers should be considered against the interest of the freedom fighter for granting pension under the SSSP Scheme. Further that the State Government and the Union Government are the executive limbs of the People of India, as a Republican Nation and no individual citizen can be denied pensionary benefits referable to the SSSP Scheme, 1980 on any ground referable to the delay by the State Government in forwarding **WP(C).No. 29530 of 2018** **15** papers to the Union of India. That if such grounds were to be accepted, that will not serve, but only defeat the purpose sought to be achieved by the scheme in question. It was held by the Division Bench of this Court that the prime concept of requirement of providing pension under the SSSP Scheme to the freedom fighter and family members, is part of the process by which the Nation follows the noble ideals, which inspired those involved in the freedom struggle. Accordingly, the Division Bench of this Court had directed that the claimant therein is entitled for grant of Freedom Fighters’ Pension, not merely from the date of sanction order, but from the date of submission of the application. A reading of para.3 of the abovesaid judgment in _**Janakidas’s case**_ (supra) would also show that **WP(C).No. 29530 of 2018** **16** the said case was the one where primary evidential material was produced. 7. It is by now well established by the decision of the Apex Court as in _**Mukund Lal Bhandari & others v. Union of India**_ **& others** **[** _**1993 Supp (3) SCC 2 = AIR 1993 SC 2127**_ **],** _**Union of India v. Kaushalayadevi**_ **[(** _**2007) 9 SCC**_ _**525**_ **]** , that in cases where the claimant is able to successfully prove the claim on the basis of primary evidentiary material, then the claimant is entitled for grant of Freedom Fighters’ Pension under the Central Scheme, not merely from the date of sanction order, but from the date of submission of the application. Further that in cases where the applicant concerned is able to prove the claim only on the basis of secondary evidentiary material and not on the basis of primary **WP(C).No. 29530 of 2018** **17** evidentiary material, then the claimant can get the benefit only from the date of sanction order or from the date of judgment of the court, which recognizes such rights of the claimant. 8. In the instant case, it is beyond doubt that the petitioner has proved her claim on the basis of primary evidential material, viz., Ext.P-1 certificate issued by the Commandant of Malabar Special Police, which proves the factum of dismissal of the petitioner’s deceased husband from the service of MSP, on account of his participation in the historic MSP strike. 9. In the light of these aspects, the stand taken by the 1[st] respondent-Union Government that the petitioner is entitled for grant of Freedom Fighters’ Pension, only from **WP(C).No. 29530 of 2018** **18** the date of Ext.P-5 order dated 04.11.2015 and not from the date of submission of Ext.P-2 application, is not tenable. Accordingly, it is ordered that the impugned Ext.P-5 proceedings dated 04.11.2015, to the limited extent it grants the Freedom Fighters’ Dependent Pension to the petitioner only with effect from 04.11.2015, will stand legally interdicted and it is ordered that the competent authority of 1[st] respondent-Union Government shall pay Freedom Fighters’ Pension and arrears thereon to the petitioner with effect from 01.01.2005. It is pointed out that the Freedom Fighters’ Pension has already been disbursed to the petitioner for the periods from 04.11.2015, pursuant to Ext.P-5. If that be so, the arrears of Freedom Fighters’ Pension due to the petitioner for **WP(C).No. 29530 of 2018** **19** the period from 01.01.2005 upto 03.11.2015 should be disbursed to the petitioner by the competent authority of the 1[st] respondent-Union Government, without much delay, preferably within a period of 2 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, JUDGE** **vgd/11.12.18** **WP(C).No. 29530 of 2018** **20** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF CERTIFICATE DATED 4.5.1981 ISSUED BY THE COMMANDANT, M.S.P.** **EXHIBIT P2 TRUE COPY OF APPLICATION DATED 6.12.2004 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF LETTER DATED 19.9.2005 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 22.1.2014 IN WPC.NO.19723/2012 OF THIS HON'BLE COURT.** **EXHIBIT P5 TRUE COPY OF ORDER DATED 4.11.2015 ISSUED BY THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA.**