PULUKKOOL KRISHNAN NAIR v UNION OF INDIA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936** ## **WP(C).No. 24789 of 2011 (W)** **----------------------------** **PETITIONER :** **--------------------------** **PULUKKOOL KRISHNAN NAIR, S/O.KRISHNAN NAIR, PAYYAVOOR P.O, KANNUR DISTRICT,PIN- 670 633.** **BY ADVS.SRI.V.C.JAMES SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL)** ## **RESPONDENT :** **----------------------------** **THE UNION OF INDIA,** **REPRESENTE BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS,(FFP DIVISION), LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI -110 001.** **BY SRI.S.KRISHNAMOORTHY,CGC SRI.P.PARAMESWARAN NAIR,ASG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-06-2014, ALONG WITH WPC.NO. 24790 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.24789/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE JUDGMENT DATED 10/3/2010 IN WP(C).NO.3655/2010 OF THIS HONOURABLE COURT** - **P2 COPY OF THE PENSION SANCTION ORDER NO.52/CC/K/78/2010-FF(SZ) DATED NIL, NOVEMBER, 2010** - **P3 COPY OF THE COVERING LETTER SENT BY THE PETITIONER.** - **P4 COPY OF THE POSTAL RECEIPT DATED 1/1/2011** - **P5 COPY OF THE REMINDER LETTER DATED 29/7/2011** ## **RESPONDENT'S EXHIBITS:** **R1(A) COPY OF THE COMMUNICATION DATED 26/03/2011** - **R1(B) COPY OF THE COMMUNICATION DATED 02/05/2011 ALONG WITH THE GUIDELINES.** ## **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **P.R. RAMACHANDRA MENON J.** ~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) Nos. 24789, 24790, 24791 25159 and 29090 of 2011 ~~~~~~~~~~~~~~~~~~~~~ Dated, this the 10[th] day of June, 2014 ## **JUDGMENT** Correctness and sustainability of the orders passed by the authorities of the Central Government granting the benefit of pension under the Swathanthrata Sainik Samman Pension Scheme (SSSP Scheme), with reference to the particular date reckoned for the purpose is under challenge in all these writ petitions. 2. The case of the petitioners is that they are entitled to have the benefit of SSSP Scheme and that applications were submitted in view of participation in 'Kavumbhai struggle', which was declared as part of the freedom struggle. The applications were mooted through the State Government and since the claim put forth by the petitioners was not considered, the petitioners were constrained to approach this Court by filing various writ petitions, which were disposed of, as per separate judgments, directing the State Government to consider the claim and forward the same with all necessary recommendations, particularly, with regard to evidence in support of their claim. The case of the petitioners was that all the parties concerned had ## _W.P.(C) No. 24789 of 2011 and connected cases_ : 2 : undergone imprisonment in jail and that sufferings were disclosed from the certificates issued by the concerned Jail authorities. The matter was directed to be verified by the authorities of the Jail department and it was accordingly, that direction was given to the State Government to forward the applications for being considered and dealt with by the Central Government and to have the benefit disbursed accordingly. 3. Pursuant to the judgment passed by this Court in the concerned writ petitions as above on various dates, the matters were considered and the State Government made a positive recommendation to the effect that the parties concerned had actually participated in the freedom struggle and had undergone imprisonment for the requisite extent (qualifying period). The applications were forwarded to the Central Government along with recommendation, which were considered by the Central Government, who passed relevant orders, granting the benefit of SSSP with effect from the date of judgment. The case projected by the petitioners is that the evidence adduced from the part of the petitioners being 'primary evidence', they are entitled to have the pension disbursed with effect from the date of application. _W.P.(C) No. 24789 of 2011 and connected cases_ : 3 : 4. The respondents have filed counter affidavits in all the cases. Heard both the sides in detail. 6. During the course of hearing, the learned counsel for the petitioners submits that the basic question whether the pension under the SSSP Scheme is payable with effect from the date of application or with effect from the date of the order has already been considered by this Court in the light of law declared by the Apex Court on the point and the position has been made clear as per the decision reported in **2011 (3) KLT 105 [Thambayi Amma Vs. Union of India],** holding that, in cases involving 'primary evidence' (Jail certificate .. etc.), it has to be w.e.f the date of application and in case of 'secondary evidence' (Personal Knowledge Certificate, Co-prisoners Certificate ... etc), it has to be w.e.f. date of order. The petitioners claim the benefit of the aforesaid judgment, so as to have the payment effected accordingly. 7. The respondents vehemently oppose the reliefs sought for, pointing out that no tenable material has been produced from the part of the petitioners, as to the receipt of application or the proceedings by the Central Government, on any date before the ## _W.P.(C) No. 24789 of 2011 and connected cases_ : 4 : same was forwarded by the State, pursuant to the judgment passed by this Court along with recommendation. It is also pointed out that the proceedings came to be dealt with by the Central Government only at much later stage and it was after considering the same, that orders have been passed granting benefit from the date of judgment itself. Particulars in respect of the 5 cases are given in a tabulated form for convenience of reference. |reference.||| |---|---|---| |**_Case No._**<br>**_(WPC No.)_**|**_Date of judgment_**|**_Date of recommendation by the State_**<br>**_Government._**| |24789 of 2011|10/03/10|29.04.2010 followed by clarifications<br>and finalization as per proceedings<br>dated 16.09.2010| |25159 of 2011|14/12/09|25/01/11| |29090 of 2011|05/04/10|06/12/10| |24790 of 2011|09/03/10|11/10/10| |24791 of 2011|26/05/10|13/10/10| 8. During the course of hearing, it is brought to the notice of this Court that the judgment passed by this Court and reported in **2011 (3) KLT 105** (cited supra) was subjected to challenge by way of appeal. The finding and reasoning has been confirmed in writ appeal, but the relief granted was modified to the extent holding that, since there was a span of eight years in between, the _W.P.(C) No. 24789 of 2011 and connected cases_ : 5 : benefits would be paid reckoning the eligible period as from three years immediately preceding the date of judgment. 9. There is a case for the respondents that only in cases where positive evidence has been let in, to confirm the factual position, that the benefits are to be given from the date of the application and in all other cases where the benefits have been passed on the basis of doubt, it shall be the other way round as made clear by the Apex Court in **Government of India vs. K.V. Swaminathan [(1997) 10 SCC 190]** . It is stated that in all these cases, the matter was considered with leniency; more so, when documents produced were only photocopies and that recommendation was made by the authorities concerned with reference to the same and not the originals. This being the position, the petitioners are not entitled to have the benefit right from the date of application, submits the learned Standing Counsel. 10. After hearing both the sides, this Court finds that eligibility of the parties concerned to get the benefit is with reference to the fact whether the evidence adduced is 'primary evidence' or 'secondary evidence'. All the five cases involved herein are with reference to 'primary evidence', i.e. jail certificate ## _W.P.(C) No. 24789 of 2011 and connected cases_ : 6 : and as to the suffering/punishment undergone in the jail. Since the claims put forth by the petitioners have been considered and allowed based on the recommendation and the materials produced and since the issue has already been settled by virtue of law declared by this Court in **Thambayi Amma Vs. Union of India** ( **2011 (3) KLT 105)** (placing reliance on the verdict passed by the Apex Court on the point) and further since the said verdict stands confirmed with appropriate modification by the Division Bench as per the verdict passed on 10.04.2012 in W.A. 1910/2011, this Court finds that the petitioners are also entitled for similar relief. Accordingly, it is declared that the petitioners are entitled to have the benefit flowing from the SSS Pension Scheme, reckoning the period **as three years from immediately preceding the date of the judgment in the concerned case,** instead of from the date of the judgment as now ordered by the respondent concerned. 11. In the above circumstances, the impugned orders are modified to the said extent and the respondents are directed to recompute the benefits and disburse the due amount to the petitioners in the above said terms, at the earliest, at any rate, _W.P.(C) No. 24789 of 2011 and connected cases_ : 7 : within three months from the date of receipt of a copy of the judgment. All the writ petitions are disposed of accordingly. sd/- **P. R. RAMACHANDRA MENON, (JUDGE)** kmd