P.J. Leela and others v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** ## **WP(C).No. 177 of 2011** ## **PETITIONER/S:** |**1**|**P.J.LEELA,**| |---|---| ||**D/O.CHINNAMMA JACOB,**| ||**CHEMBOTTIKKAL HOUSE, MUNNANI, PALA.P.O,,**| ||**KOTTAYAM, KERALA.**| |**2**|**THANKAMMA,**| ||**PRASANTH BHAVAN**| ||**PIRAVOM, ERNAKULAM DISTRICT, KERALA STATE.**| |**3**|**P.J. MARY,**| ||**PRASANTH BHAVAN, PIRAVOM**| ||**ERNAKULAM DISTRICT, KERALA STATE.**| |**4**|**P.J. SILVY,**| ||**18/811 C**| ||**VADASSERY HOUSE, INDIRA NAGAR ROAD,**| ||**PALLURUTHY, KOCHI -682 006, KERALA STATE.**| ||**BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)**| **RESPONDENT/S: UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI - 110 003.** **BY ADVS. SRI.S.KRISHNAMOORTHY, CGC SRI.ALEX VARGHESE CGC SRI.N.NAGARESH ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **..2..** ## **W.P.(C)No.177 of 2011** ## **ALEXANDER THOMAS, J.** **-------------------------** **W.P.(C)No.177 of 2011 --------------------------Dated this the 19[th] day of September, 2018** ## **JUDGMENT** **The grievance of the petitioners is in respect of the impugned decision of the respondent Union Government, as reflected in Ext.P6 communication dated 15.11.2010, whereby the request for grant of arrears of Freedom Fighters Pension from the date of receipt of the application as ordered in Ext.P3 judgment, has been denied.** **2. Heard Sri.Grashious Kuriakose, learned senior counsel instructed by Sri.T.T.Rakesh, learned counsel appearing for the petitioners and Sri.N.Nagaresh, learned Assistant Solicitor General appearing for the respondent (UOI).** **3. According to the petitioners, their father, late P.A.Jacob, was a freedom fighter,** **W.P.(C)No.177 of 2011** **==> picture [31 x 8] intentionally omitted <==** **who is eligible and entitled for the grant of Freedom Fighters Pension under the Central Scheme. Though he had applied for the Freedom Fighters Pension during his lifetime, the same was not sanctioned and paid and hence, he was constrained to initiate writ proceedings before this Court by filing O.P.No.333 of 1999. During the pendency of O.P.No.333 of 1999, Sri.P.A.Jacob had died on 1.12.1998 and the said writ proceedings were continued by his widow, Chinnamma Jacob. This Court had finally disposed of O.P.No.333 of 1999 as per judgment dated 08.01.1999, wherein it was held that the additional petitioner therein (the widow) should file another representation in continuation of the application filed by her deceased husband before the respondent-Union Government within one month and direction was rendered to the respondent to consider and pass orders on the** **W.P.(C)No.177 of 2011** **==> picture [31 x 7] intentionally omitted <==** **said plea. Thereafter, the widow had filed formal application dated 12.2.1999 for the grant of the benefit under the Central Scheme, which was denied and the claim was rejected by the respondent. Thereupon, the widow was constrained to file O.P.No.27332 of 1999 before this Court, in which this Court had rendered judgment dated 26.07.2002 directing the respondent to consider the claim of the petitioner therein afresh taking into the account the materials and documents produced as Ext.P2 therein etc. Thereafter, by order dated 16.01.2003, the competent Authority of the respondent-Union Government had again rejected the claim of the widow. The said order dated 16.01.2003 was challenged by the widow by filing yet another writ proceedings as O.P.No.7634 of 2003 before this Court. This Court as per Ext.P3 judgment dated 08.08.2007 had finally disposed of O.P.No.7634 of 2003 by** **W.P.(C)No.177 of 2011** **..5..** **quashing the impugned rejection order and declaring that the petitioner therein is eligible for the grant of pension under the SSS Pension Scheme and consequential orders sanctioning pension along with arrears thereon from the date of receipt of the application will be passed within a period of six weeks. It appears that in the meanwhile, the widow (the petitioner in Ext.P3 O.P.No.7634 of 2003) had died and the petitioners herein, who are the legal representatives of their deceased mother (widow of the freedom fighter), had made claim for the grant of arrears consequent to Ext.P3 judgment. The 1[st] respondent-Union Government had thereafter issued Ext.P4 proceedings on 12.05.2010 sanctioning Freedom Fighters Dependents Pension to the said widow with effect from 26.05.1998 under the Central Scheme. The grievance of the petitioners is that the arrears of pension, which** **W.P.(C)No.177 of 2011** **==> picture [31 x 8] intentionally omitted <==** **were due to the deceased claimant, have now been disbursed and paid by the respondent-Union Government only from 26.05.1998, and without interest and not from the date of receipt of the application of the deceased freedom fighter, viz., 20.10.1975. The petitioners herein, as the legal representatives of the deceased claimant, had filed Ext.P5 representation dated 08.09.2010 that they should be granted arrears of the benefit not merely from 20.05.1998, but from 20.10.1975 (date of receipt of the application originally submitted by the deceased freedom fighter). The said request for grant of arrears with effect from 20.10.1975 has now been rejected by the competent Authority of the respondentUnion Government as per Ext.P6 order dated 15.11.2010, which is now under challenge in this writ proceedings.** **W.P.(C)No.177 of 2011** **==> picture [31 x 7] intentionally omitted <==** **4. From a reading of the impugned order, it can be seen that the deceased freedom fighter was involved in the Punnapra-Vayalar Struggle, for which his widow was granted the Freedom Fighters Dependent Pension under the Central Scheme with effect from 26.05.1998. It is a well established fact that Punnapra-Vayalar Movement was not initially recognized by the competent Authority of the Union Government for the grant of Freedom Fighters Pension either under the Central Freedom Fighters Pension Rules, 1972 or under the Central Swathanthra Sainik Samman Pension Scheme, 1980. It is only much later as per the proceedings dated 20.01.1998 that the competent Authority of the respondent-Union Government had issued proceedings recognizing the Punnapra-Vayalar Movement and five other movements, which occurred in the State of Kerala to be part of the National Freedom Movement for the purpose of grant of** **W.P.(C)No.177 of 2011** **..8..** **Freedom Fighters Pension under the Central Scheme. The proceedings dated 20.1.1998 issued by the respondent Union Government, which has been produced in a series of cases, dealt with by this Court, reads as follows:-** **No.6/1/97-FF(P) GOVERNMENT OF INDIA/BHARAT SARKAR MINISTRY OF HOME AFFAIRS/GRIH MANTRALAYA** **New Delhi, the Jan 20, 1998** **To** **The Principal Secretary Government of Kerala, General Administration (FFP.B) Department, Thiruvananthapuram** **Subject:-Recognition of six regional movements taken place in Kerala during the freedom struggle for the purpose of grant of Samman Pension under the Swatantrata Sainik Samman Pension Scheme, 1980-reg.** **Sir,** **I am directed to refer to the Chief Minister of Kerala's D.O. No.81623/FFP/.A1/96/GAD dated 8[th] November 1996 addressed to the** **W.P.(C)No.177 of 2011** **..9..** **Union Home Minister and the State Government's letter No.81623/FFP. A1/96/GAD dated 5/2/1997 and wireless message dated 11/7/1997 on the subject mentioned above. The State Government of Kerala have sent a proposal for recognition of the following six movements taken place in Kerala during the freedom struggle for the purpose of grant of Samman Pension;-** - **(a) Punnapra-Vayalar Movement.** - **(b) Kayyur Movement** - **(c) Kavumbai Movement.** - **(d) Karivelloor Movement.** - **(e) Morazha Movement.** - **(f) Malabar Special Police Strike (MPS Strike)** **2. The Central Government has considered the said proposal. The decision of the Central Government is hereby conveyed with the approval of the Cabinet, recognising the above said six movements taken place in Kerala during the freedom struggle for the purpose of grant of Samman Pension under the Swatantrata Sainik Samman Pension Scheme prospectively, i.e. from date of issue of this order.** **3. In view of the above, State Government, are therefore requested to inform their field agencies and applications submitted by the participants of** **W.P.(C)No.177 of 2011** **==> picture [37 x 8] intentionally omitted <==** **the movements may be sent after verification of documents adduced in support of the claimed sufferings along with the specific recommendation of State Government about entitlement of pension or otherwise strictly in accordance with the provisions of Swantantrata Sainik Samman Pension Scheme, 1980.** **Yours faithfully Sd- (SHISHIRJHA) DEPUTY SECRETARY TO THE GOVT.OF INDIA Tel.No.4618105.”** **Therefore, freedom fighters, who claimed to be participants in the Punnapra-Vayalar Movement, became eligible for the consideration of the grant of Freedom Fighters Pension under the Central Scheme only from 20.01.1998. It is clearly stated in the impugned Ext.P6 rejection order that the application submitted by the deceased freedom fighter for the grant of Freedom Fighters Pension, pursuant to the above said recognition proceedings dated 20.01.1998, was received in the Union Ministry concerned only on** **W.P.(C)No.177 of 2011** **==> picture [37 x 8] intentionally omitted <==** **26.05.1998. It is also well established by the judgments of the Apex Court as in Union Of India & Another v. Kausalya Devi reported in [(2007) 9 SCC 525], about which reference has been made in the impugned Ext.P6 order, that in cases where the claim is proved on the basis of secondary evidence and not on the primary evidentiary materials, then, the pension benefit under the Central Scheme could be granted only from the date of sanction order and not from the date of receipt of the application. Whereas in cases where such claims are proved on the basis of primary evidentiary materials, then, the claimants are entitled to receive the benefit of pension from the date of receipt of the application. However, in the instant case, there has been inter-pares and concluded judgment as per Ext.P3 dated 08.08.2007 in O.P.No.7634 of 2003 filed by the widow that she is entitled for** **W.P.(C)No.177 of 2011** **==> picture [37 x 8] intentionally omitted <==** **the grant of benefit from the date of receipt of the application. Therefore, the respondent is bound by the conclusive directions issued by this Court in Ext.P3 judgment, notwithstanding the legal position to the contrary in cases as in UOI & another v. Kausalya Devi from [(2007) 9 SCC 525]. The clear direction in Ext.P3 judgment is that the benefit of pension and arrears should be granted from the date of receipt of the application.** **5. From the pleadings on record, it is seen that the widow had made the formal application for the grant of Freedom Fighters Dependent Pension under the Central Scheme on 12.02.1999. However, it is clear from the impugned Ext.P6 order that the freedom fighter had earlier filed the formal application for the grant of Freedom Fighters Pension under the Central Scheme on 26.05.1998, consequent to the proceedings dated** **W.P.(C)No.177 of 2011** **==> picture [37 x 8] intentionally omitted <==** **20.01.1998 issued by the respondent recognizing the Punnapra-Vayalar Movement to be part of the National Freedom Movement.** **6. The petitioners' counsel placed reliance on Ext.P1 dated 25.10.1975 wherein it is referred that the application of the freedom fighter was received on 20.10.1975. The said application was submitted at a time when the Central Freedom Fighters Pension Rules, 1972 was in vogue. Both during the currency of the Central Freedom Fighters Pension Rules, 1972 as well as during the earlier period of the currency of the Central SSS Pension Scheme, 1980, the Punnapra-Vayalar Movement, in which the claimant was involved, was not duly recognized by the Union Government to be part of the National Freedom Movement. It was much later on 20.01.1998 that the respondentUnion Government had recognized the PunnapraVayalar Movement to be part of the National** **W.P.(C)No.177 of 2011** **..14..** **Freedom Movement. The freedom fighter got entitlement for consideration of the application under the Central Scheme only on or after the proceedings dated 20.01.1998. Hence, from the impugned Ext.P6 order, it is seen that the freedom fighter had later submitted the application on 26.05.1998, after the issuance of** **the recognition proceedings dated 20.01.1998. It is clearly stated in Ext.P6 that the arrears of pension have been duly disbursed with effect from 26.05.1998. The petitioners also admit that they were granted the arrears of benefits from 26.05.1998. The petitioners also submit that the arrears of pension with effect from 26.05.1998 was granted, but only in the year 2010. So, the claim of the petitioners for grant of arrears of pension with effect from 20.10.1975 is not tenable. Moreover, in Ext.P3 judgment, this Court has not mentioned as to which exactly the date of** **W.P.(C)No.177 of 2011** **..15..** **receipt of the application, other than stating that the pension arrears should be paid from the date of receipt of the application.** **7. Hence, the main contention of the petitioners will stand overruled. The only other contention raised by the petitioners is that the arrears of pension with effect from 26.05.1998 was paid only in the year 2010 and without any interest thereon. In the instant case, the freedom fighter and his widow have died. The petitioners do not have a case that any of them who are the legal representatives of the deceased freedom fighter and the widow are their eligible dependents in terms of the Central Scheme. This Court is not inclined to exercise its discretion to issue any direction to the respondent-Union Government solely for grant of interest on account of the delayed disbursal of arrears of pension in the year 2010, as arrears have already** **W.P.(C)No.177 of 2011** **..16..** **been paid with effect from 26.05.1998.** **Accordingly, it is ordered that the above writ petition (civil) will stand dismissed.** **Sd/-** **ALEXANDER THOMAS, JUDGE** **skj** **..17..** ## **W.P.(C)No.177 of 2011** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LETTER DATED 25.10.1975 ISSUED BY THE DEPUTY SECRETARY PUBLIC FREEDOM FIGHTERS PENSION DEPARTMENT, TRIVANDRUM** **EXHIBIT P2 TRUE COPY OF THE LETTER DATED 12.5.95 ISSUED BY THE RESPONDENT EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 8.8.2007 IN OP.7634/2003 OF THIS COURT EXHIBIT P4 TRUE COPY OF THE ORDER DATED 12.5.2010 ISSUED BY THE RESPONDENT EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 8.9.2010 BEFORE THE RESPONDENT EXHIBIT P6 TRUE COPY OF THE LETTER DATED 15.11.2010 ISSUED BY THE RESPONDENT TO THE 1ST PETITIONER**