Rugmini Vasavan v Union of India and State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF JULY 2018 / 28TH ASHADHA, 1940** **WP(C).No. 11865 of 2016** ## **PETITIONER** **RUGMINI VASAVAN, W/O.LATE V K VASAVAN, VADAKUZHIYIL HOUSE, KUTHIRAPANTHY WARD, ALAPPUZHA DISTRICT** **BY ADVS.SRI.K.K.SATHEESH** **SRI.THOMSON T.KURICHIYANI** ## **RESPONDENTS:** **1. UNION OF INDIA REPRESENTED BY THE DEPUTY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, NEW DELHI CITY CENTRE II, BUILDING, 2ND FLOOR, PARLIAMENT STREET, NEW DELHI 110001** **2. STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFPA)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** **R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA SRI.M.RAJENDRA KUMAR, CGC R2 BY GOVERNMENT PLEADER SRI. JESTIN MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11865 of 2016 (G)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBITS P1:- TRUE COPY OF THE ORDER DTD 20/10/1947 PASSED BY THE SPECIAL MAGISTRATE COURT, ALLEPPEY IN CASE P E NO 9/1122 M3(CRIME NO 48/1122 ME OF THE ALLEPPY POLICE STATION) EXHIBITS P2:- TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA VIDE ORDER NO R DIS 34444/71 EXHIBITS P3:- TRUE PHOTOGRAPHS OF THE THAMRAPATHRA' WAS PRESENTED TO PETITIONERS LATE HUSBAND EXHIBITS P4:- TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR THE GRANT OF SSS PENSION TO RESPONDENTS EXHIBITS P5:- TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT SEALED BY THE IST RESPONDENT DTD 4/6/1998 EXHIBITS P6:- TRUE COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY SRI P A SOLOMON EX MP DTD 1/1/2005 EXHIBITS P7:- TRUE COPY OF THE JUDGMENT DTD 14/11/2006 PASSED BY THIS HON'BLE COURT IN WPC NO 32030/2005 EXHIBITS P8:- TRUE COPY OF THE NARC FROM THE SUPERINTENDENT OF POLICE, ALAPPUZHA DTD 17/1/2006 EXHIBITS P9:- TRUE COPY OF THE NARC FROM THE CJM COURT, ALAPPUZHA EXHIBITS P10:- TRUE COPY OF THE COMMUNICATION NO 98787/FFP/A2/2005/GAD DTD 20/3/2007 ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT EXHIBITS P11:- TRUE COPY OF THE ORDER NO 52/CC/K/164/2005/FF(SZ)DTD 2/7/2008 ISSUED BY THE IST RESPONDENT EXHIBITS P12:- TRUE COPY OF THE JUDGMENT DTD 16/6/2010 PASSED BY THIS HON'BLE COURT IN WPC NO 5922/2010 EXHIBITS P13:- TRUE COPY OF THE ORDER NO 52/CC/K/57/2010-FF(SZ)DTD 22/7/2010 ISSUED BY THE IST RESPONDENT** ## **WP(C).No. 11865 of 2016 (G)** **EXHIBITS P14- TRUE COPY OF THE JUDGMENT DTD 27/11/2015 PASSED BY THIS HON'BLE COURT IN WPC NO 12659/2008 EXHIBITS P15- TRUE COPY OF THE LETTER NO 1026/FFP-A2/2016/GAD DTD 2/3/2016 ISSUED BY THE 2ND RESPONDENT TO THE IST RESPONDENT** **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/ PA TO JUDGE** **sdr/23.7.18** ## **ALEXANDER THOMAS, J.** ----------------------------W.P(C).No.11865 Of 2016 --------------------------------Dated this the 19[th] day of July, 2018. J U D G M E N T The petitioner is essentially aggrieved by the impugned order rendered by the 2[nd] respondent-State Government as conveyed in Ext.P-15 Government letter No.1026/FFP.A2/2016/GAD dated 2.3.2016, whereby the said authority has decided to refuse to recommend the case of the petitioner for the grant of freedom fighter's dependent pension under the Central Swatantrata Sainik Samman Pension Scheme, 1980 (SSSP Scheme 1980). The petitioner is a widow of the claimant, who had suffered imprisonment for more than the minimum period of six months on account of his participation in Punnapra-Vayalar movement. The main prayers in this Writ Petition (civil) are as follows: _“i) Call for the records leading to the issue of Exhibit-P15 and quash its original by issuance of a writ of certiorari; ii) declare that the petitioner is entitled to get the benefit of SSS Pension due to her late husband; iii) issue a writ of mandamus or other appropriate writ, direction or order, compelling the 2[nd] respondent to forward its fresh verification-cum-entitlement to pension report duly recommending the petitioner's claim for the grant of SSS Pension due to her late husband and on receipt of the same, the 1[st] respondent may be directed to grant the benefit of said Pension to the petitioner with the actual arrears due to her within a stipulated time.”_ 2. Heard Sri.K.K.Sathish, learned counsel for the petitioner, Sri.M.Rajendra Kumar, learned Central Government ::2:: W.P(C).No.11865 Of 2016 Counsel, appearing for R-1, Union of India and Sri.Jestin Mathew, learned Government Pleader appearing for R-2 State of Kerala. 3. It is stated that the petitioner's late husband Sri.Kochukunju Vasavan, was actively involved in the PunnapraVayalar movement and on account of his involvement in the movement, he was arrayed as one of the accused in Crime No.48/1122 ME of Alappuzha Police Station which led to the institution of Preliminary Enquiry case, P.E.No.9/1122 ME on the file of the of the Special Magistrate Court, Alappuzha. Ext.P-1 is the order dated 20.10.1947 (3.3.1123 ME) rendered by the Court of Special Magistrate, Alappuzha, in the above said P.E.No.9/1122 ME, whereby 7 accused (including petitioner's husband) out of the 95 accused therein were discharged. It is the case of the petitioner that a reading of Ext.P-1 judgment would show that petitioner's husband, Kochukunju Vasavan, had suffered actual imprisonment/detention for a period not less than the period from 14.7.1122 MME (26.2.1947) up to 3.3.1123 (20.10.1947), which is the date of Ext.P-1 order. Further, the petitioner's husband had died on 14.4.1993. Prior to his death, he was awarded freedom fighter's pension under the State Scheme by the 2[nd] respondent as per Ext.P-2 proceedings with effect from 1.4.1971 on account of ::3:: W.P(C).No.11865 Of 2016 his participation in the Punnapra-Vayalar movement. That based on the recommendation made by the competent authority of the 2[nd] respondent-State Government, the petitioner's husband was declared as eligible for receiving ' _Thamarapathra_ ' and the same was awarded to him by the then Hon'ble Prime Minister, as per Ext.P-3 dated 15.8.972. That till the death of the petitioner's husband, Punnapra-Vayalr movement was not recognized as an eligible movement for grant of pension under the Central Scheme and it was only with effect from 20.1.1998, that the 1[st] respondentUnion Government had issued proceedings recognizing the Punnapra-Vayalar movement as also eligible to be considered for the grant of pension under the said Central Scheme. That thereupon, the petitioner has submitted Ext.P-4 application before the 1[st] respondent, which was duly received by them on 4.6.1998 as discernible from Ext.P-5. In serial No.11(3) of Ext.P-4, the petitioner has specifically placed reliance on Ext.P-1 order of the Special Magistrate Court, Alappuzha in P.E.No.9/1122 ME. That by way of abundant caution, the petitioner has also submitted Ext.P-6 co-prisoner certificate. Since no positive action was forthcoming, the petitioner had again submitted representation before the 2[nd] respondent so as to recommend the specific case of ::4:: W.P(C).No.11865 Of 2016 the petitioner. That though Ext.P-1 judgment is a primary piece of evidence, the petitioner was advised by way of abundant caution that co-prisoner's certificate may also be produced. One P.A Solomon, former Member of Parliament, had issued Ext.P-6 coprisoner certificate dated 1.1.2005 certifying that he had personal knowledge about petitioner's husband and that he had participated in the Punnapra-Vayalar movement and that on account of his involvement in P.E.No.9/1122 ME on the file of the Special Magistrate Court, Alappuzha, he was lodged in the same Sub Jail along with certifier during the period in question. Ext.P-6 coprisoner certificate was issued by the certifier in accordance with the prescribed format under the Central Scheme. Further, it is stated that Ext.P-6 has been issued by a certifier, inasmuch as by Ext.P-7 judgment dated 14.11.2006 in W.P.(C).No.32030/2005 filed by the petitioner, this Court directed that it is for the petitioner to approach the 2[nd] respondent therein by producing the requisite documents in the prescribed format and thereupon directing the 2[nd] respondent therein to consider the case of the petitioner and then take a decision in the matter of recommendation as per the Central Scheme within two months, etc. Ext.P-8 is the Nonavailability of Records Certificate (NARC) dated January, 2006, ::5:: W.P(C).No.11865 Of 2016 issued by the Superintendent of Police, Alappuzha, stating that no records are available in that office in connection with the cases relating to the Punnapra-Vayalar movement, etc. Ext.P-9 is the NARC issued by the Chief Judicial Magistrate Court, Alappuzha. But, however, the criminal case was wrongly mentioned therein as P.E.No.7/1122 ME instead of P.E.No.9/1122 ME covered by Ext.P-1. Thereafter, the 2[nd] respondent-State Government had refused to recommend the case of the petitioner as conveyed in Ext.P-10 letter dated 20.3.2007. One of the grounds mentioned in Ext.P-10 is that number of the Preliminary Enquiry case is different from the one covered by Ext.P-1 order and further that the petitioner's husband was discharged in the said criminal case as per Ext.P-1 and therefore he is not eligible. Consequently, the 1[st] respondent-Union Government had also issued Ext.P-11 proceedings dated 2.7.2008 rejecting the claim of the petitioner. Further a perusal of para 6 of Ext.P-11 proceedings would show that the grounds stated by the 1[st] respondent are that the petitioner has not furnished the requisite primary evidence duly verified by the State Government and she has not furnished acceptable evidence based on secondary evidence along with a valid NARC issued by the State Government, etc. ::6:: W.P(C).No.11865 Of 2016 4. One Sri.Augustinju Marian, who had also participated in the Punnapra-Vayalar movement, was also arrayed as accused No.73 in Ext.P-1 P.E.No.9/1122 ME on the file of the Special Magistrate Court, Alappuzha, in which the petitioner's husband was arrayed as accused No.70. Augustinju Marian's widow, Smt.Mariya, had also put up an application for the benefit of freedom fighter's pension under the Central Scheme on account of her deceased husband's participation in the Punnapra-Vayalar movement and in that case, the competent authority of the State Government has duly recommended the case of that claimant as per letter No.28490/FFP A2/2009/GAD dated 29.5.2009. But by proceedings dated 19.11.2009, the 1[st] respondent-Union Government had rejected the said claim made on the ground that it does not meet the eligibility criteria and evidentiary requirements of the Scheme. The said rejection order was challenged by his widow by filing W.P.(C).No.5922/2010, which was allowed on merits as per Ext.P-12 judgment dated 16.6.2010. In that case, it was specifically pointed out that the said co-accused Marian had actually undergone imprisonment on account of his being part of an accused in the above said P.E.No.9/1122 ME for the very same period in question, viz, 14.7.1122 ME to 3.3.1123 ME. Therein, ::7:: W.P(C).No.11865 Of 2016 Marian, who was accused No.73, was also discharged as in the case of the petitioner's husband, who was accused No.70, as per Ext.P-1 order herein. This Court as per the elaborate judgment as per Ext.P-12 dealt with all the issues in the matter. In that case also, Marian's widow placed a co-prisoner's certificate (Ext.P-6 therein) issued by Sri.P.A Solomon, former Member of Parliament, which is in the same lines as in Ext.P-6 herein. This Court conclusively held that the claimant could prove his actual imprisonment for the above said 7 months' period (from 14.7.1122 ME to 3.3.1123 ME) as evident from the order of the Magistrate as per Ext.P-1 herein and that the said criminal case was initiated on account of the incident in relation to Punnapra-Vayalar movement and that therefore the claimant could prove the crucial factual aspect that he had suffered actual imprisonment for a period of not less than 6 months period as prescribed in the Central Scheme on account of his having involvement in a criminal case registered in relation to Punnapra-Vayalar movement and therefore he is eligible and entitled for the grant of pension and hence his widow is entitled for the benefit of freedom fighter's pension under the Central Scheme. In that view of the matter, this Court had set aside the impugned order passed by the Central Government and ::8:: W.P(C).No.11865 Of 2016 issued a mandamus directing that the authority to grant pension and arrears of pension under the SSS Pension Scheme, 1980, within 2 months. Thereafter, the 1[st] respondent-Union Government had issued Ext.P-13 proceedings dated 22.7.2010 granting the said benefits to Marian's widow in compliance with this Court's judgment as per Ext.P-12 herein. Aggrieved by Exts.P-10 and P-11 rejection orders suffered by the petitioner, she had approached this Court by filing W.P.(C).No.12659/2008. The petitioner had placed reliance on the above said documents as well as the judgment of this Court as per Ext.P-12 herein issued in the case of Marian's widow as well as the order issued by the 1[st] respondent as per Ext.P-13 herein granting the benefit of pension to Marian's widow, etc. Taking into account all these aspects, this Court directed that the matter will stand remitted to the respondents herein for consideration of the case of the petitioner afresh after taking into account the above said aspects. Thereafter, the 2[nd] respondent-State Government has rejected the case of the petitioner as conveyed in Ext.P-15 Government letter dated 2.3.2016, whereby the said authority has refused to recommend the case of the petitioner to the 1[st] respondent-Union Government for the grant of pension under the Central Scheme. ::9:: W.P(C).No.11865 Of 2016 In the light of these aspects, that the instant Writ Petition (Civil) has been filed on 21.3.2016 seeking the aforementioned reliefs. 5. The specific case of the petitioner is that Ext.P-1 order dated 20.10.1947 issued by the Special Magistrate Court, Alappuzha is a primary piece of evidence which would clearly establish the crucial fact that the petitioner had actually suffered imprisonment for a period which has subsisted at least from 26.2.1947 (14.7.1122 ME) up to 20.10.1947 (3.3.1123 ME) in view of the said criminal case, which has been registered on account of his participation in the Punnapra-Vayalar movement. Accordingly, it is contended by the petitioner that since primary evidence is available there is no necessity for the petitioner to place reliance on the secondary evidence like co-prisoner certificate and Nonavailability of Records Certificate (NARC), which are to be issued by the respondent-State authority, etc. Further that, Sri.Marian, who was co-accused along with petitioner's husband in Ext.P-1 proceedings, was identically situated as petitioner's husband, inasmuch as both of them were arrayed as accused and were discharged as per Ext.P-1 and the State Government has duly recommended the case of that claimant and rejection of that claim by the 1[st] respondent-Union Government, this Court had issued ::10:: W.P(C).No.11865 Of 2016 Ext.P-12 judgment, whereby it was conclusively found that Marian is an eligible freedom fighter, who had participated in the Punnapra-Vayalar movement and that he is eligible and entitled for the grant of pension under the Central Scheme in view of his imprisonment for the very same period as evidenced by Ext.P-1 herein. In that case also, a similar co-prisoner certificate as per Ext.P-6 herein was issued by Sri.P.A.Solomon, former Member of Parliament certifying that he was a co-prisoner along with that accused in the same Sub Jail for the period mentioned therein. After rendering Ext.P-12 judgment, the 1[st] respondent-Union Government has also fairly complied with that judgment and has issued Ext.P-13 order granting the benefit of pension under the Central Scheme to the widow of Marian. Accordingly, it is ordered that the present stand of the respondent-Union Government in rejecting the claim of the petitioner would amount to nothing but hostile discrimination. 6. After having heard the petitioner and the respondents, this Court is of the considered view that the petitioner is right in raising the above said contention. None of the respondents are in any manner disputing about Ext.P-1 order rendered on 20.10.1947 by the Special Magistrate Court, Alappuzha. The petitioner has ::11:: W.P(C).No.11865 Of 2016 placed specific reliance on that judgment even at the time of her initial submission of Ext.P-4 application as can be seen from serial No.11(d) thereof. Moreover, the State Government has acted upon that judgment to recommend the case of Marian as can be seen from a reading of Ext.P-12 judgment. The letter of recommendation in that regard issued by the State Government in favour of Marian has been referred to in page 2 of Ext.P-12 W.P. (C).No.5922/2010 filed by Marian's widow. This Court has conclusively acted upon the order of the Special Magistrate as per Ext.P-1 herein. So also, the 1[st] respondent-Union Government has also acted upon Ext.P-1 herein as can be seen from Ext.P-13 issued in favour of Marian's widow in compliance with Ext.P-12 judgment. Therefore, it is only to be held that Ext.P-1 document produced before this Court as per Ext.P-1 herein is an undisputed one. It is a copy of the order rendered by the Special Magistrate Court, Alappuzha on 20.10.1947 in P.E.No.9/1122 ME. A reading of Ext.P-1 judgment would clearly show that the crime in question was registered in relation to the events in connection with the Punnapra-Vayalar movement. Moreover, a reading of para 3 of internal page 8 of Ext.P-1 would clearly show that even the prosecution has alleged that the involvement of the then senior ::12:: W.P(C).No.11865 Of 2016 leaders of the communist party like T.V.Thomas, etc., that they had decided to wage war against the royal Government, etc. It is not in dispute that the tumultuous events in relation to PunnapraVayalar incidents had commenced roughly around 24.10.1946 (7.3.1122 ME). The concluding portion of para 3 on internal page 8 of Ext.P-1 would show that some of the alleged violent incidents have taken place on 11[th] Thulam 1122 (28.10.1946). Moreover, the concluding sentence in para 3 of Ext.P-1 would show that the very case in P.E.No.9/1122 ME is in respect of one such incident which happened on 7.3.1122 ME (24.10.1946) at Punnapra. The concluding portion of para 5 of internal page 10 of Ext.P-1 would also show that the case of the prosecution was to the effect that 4 police officers were murdered by the communist activists on 7.3.1122 (24.10.1946). A mere description of the details shown in Ext.P-1 judgment would clearly disclose the very registration of the crime in the Preliminary Enquiry in this case was in relation to tumultuous incidents that had taken place as part of PunnapraVayalar movement. There are altogether 95 accused therein, in which the petitioner's husband was arrayed as accused No.70 and Marian was accused as accused No.73. The Special Magistrate Court by Ext.P-1 order found that there is no sufficient evidence as ::13:: W.P(C).No.11865 Of 2016 against 7 out of the 95 accused in order to justify framing of charges against them and had accordingly discharged 7 of those accused including the petitioner's husband, who was accused No.70 and Marian, who was accused No.73. Further para 1 of internal page 7 of Ext.P-1 would show that the charge sheet in relation to the criminal proceedings was filed before the above said Magistrate Court by the Assistant Superintendent of Police on 14.7.1122 (26.2.1947). The discharge order as per Ext.P-1 has been rendered on 3.3.1123 (20.10.1947). It is further stated in para 2 of Ext.P-1 that all the accused (except the absconding accused) were taken into custody. It is specifically reported that among such various accused, accused Nos.70 & 73 were also in ## : custody. Para 2 of Ext.P-1 order reads as follows _“2. The accused in custody and in relation to whom this enquiry was conducted are 2, 4, 5, 7 to 9, 11, 13, 17, 18, 20 to 22, 25, 26 to 28, 30 to 34, 36 to 40, 42 to 44, 46 to 73, 76 to 88 and 90 to 95. The others are abscondings and inspite of the coercive steps taken under sections 75 and 76 of the Criminal Procedure Code, they have not appeared. Therefore, Proceedings were passed on 20-10-1122 and this enquiry was commenced regarding those in custody ie. 2, 4, 5, 7 to 69, 11, 13, 17, 18, 20 to 22, 25, 26 to 28, 30 to 34, 36 to 40, 42 to 44, 46 to 73, 76 to 88 and 90 to 95. Government sanction to prosecute the accused for offences under sections 112 to 114 T.P.C was received in their G.O.RCC.685/47/Judl. Dated 23.6.1122 (52-'47).”_ Therefore, this would really show that the above said accused including accused No.70 (petitioner's husband) and accused ::14:: W.P(C).No.11865 Of 2016 No.73 (Marian) was in custody at least for the period from 14.7.1122 (26.2.1947, which is the date of submission of the charge sheet) up to 3.3.1123 (20.10.1947, which is the date of discharge order as per Ext.P-1). It may be true that Ext.P-6 coprisoner certificate issued by Sri.P.A Solomon may not qualify the strict terms and conditions of co-prisoner certificate as envisaged in the Central Scheme inasmuch as even going by the certification made by Sri.P.A.Solomon, he had only suffered imprisonment only less than one year and he cannot be treated as an eligible certifier. But, in the instant case, the petitioner is not relying on Ext.P-6. According to him, co-prisoner certificate may be relevant only where secondary evidence alone is available. But the fact of the matter is that the version in Ext.P-6 could atleast be treated as a piece of material before the authorities. A similar certificate issued by Sri.P.A.Solomon in the case of Marian, certifying the detention for the very same period was found acceptable to the 2[nd] respondent as well as this Court and ultimately by the 1[st] respondent as stated hereinabove. Marian and the petitioner's husband were co-prisoners in the same case and therefore, Ext.P-6 could at least be treated as a relevant piece of material and the information therein would also corroborate the ::15:: W.P(C).No.11865 Of 2016 aspects that are discernible from Ext.P-1 order. In a criminal case like the one covered by Ext.P-1 having serious implications, it could only be that the remanded accused therein including the petitioner would have suffered detention even for the period prior to the date of submission of the charge sheet. But as there are no materials to show as to when exactly his period of detention had commenced, this Court need not examine that aspect as it is only to be held that the petitioner's husband had actually suffered imprisonment for the period from date of submission of the charge sheet (26.02.1947), upto the date of discharge (20.10.1947), as per Ext.P-1, which comes to 7 months and 22 days. The said period is more than the minimum period of 6 months' imprisonment as prescribed in the Central Scheme. In this context, it is only appropriate to hold and declare that the petitioner is entitled for the identical treatment as given to Marian's widow as per State Government's letter of recommendation dated 29.05.2009 and as per Exts.P-12 and P-13. As can be seen from a reading of Exts.P-12, P-13 etc., the case of Marian's widow is identically placed as that of the petitioner. In this context, it is worthy to note that this Court had already held in the case in ::16:: W.P(C).No.11865 Of 2016 _**Bharathi Krishnan v. Union of India and Another**_ (judgment dated 13.12.2011 in W.P(C)No.22582/2010) that when a coaccused/convict is granted benefits under SSS Pension Scheme, the same is to be extended to a similar claimant. 7. It is also to be borne in mind that the petitioner's husband is a recipient of Freedom Fighter's Pension under the State Scheme for his participation in relation to the very same incident in the Punnapra-Vayalar Movement as per Ext.P-2 order granted with effect from 01.04.1971. That apart, based on the specific recommendation of the competent authority-State Government, the petitioner was conferred with the benefit of the ' _Thamrapathra_ ' awarded by the Hon'ble Prime Minister of the country on 15.08.1972 as can be seen from Ext.P-3. The claim made on behalf of the petitioner's husband is that he had participated in the Punnapra-Vayalar Movement in the abovesaid incidents in question. True that conferment of Freedom Fighters' Pension under the State Scheme and conferment of ' _Thamrapathra_ ' by itself may not amount to any conclusive proof about the eligibility and entitlement of a claimant under the Central Scheme. But these are certainly strong corroborative circumstances, which only reinforce the claim of the petitioner's ::17:: W.P(C).No.11865 Of 2016 husband that he was a genuine freedom fighter, who had participated in the Punnapra-Vayalar Movement. It is only to be inferred that the respondents State Government and Union Government would have conducted exhaustive enquiries through their official machineries including the Intelligence wing and Police department, etc., to ascertain the truthfulness about the case of the petitioner's husband's involvement in the Punnapra-Vayalar incident and it is only after such elaborate verification of true and correct factual aspects that the competent authority-Union Government would have awarded the petitioner with Ext.P-3 ' _Thamrapathra_ ', on the occasion of the 25[th] year of the country's independence on 15.08.1972. 8. The relevance of the conferment of ' _Thamrapathra_ ' award on the issue of the claim under the Freedom Fighters' Pension Scheme has been dealt with by the Division Bench of this Court in _**Sankunny K.N v. Union of India and anr**_ , reported in 2011 (3) KHC 692 (DB), paras 4, 7 etc. It is not in dispute that the claimant involved in the said judgment in the Division Bench was thereafter granted Freedom Fighters' Pension under the Central Scheme. The relevance of ' _Thamrapathra_ ' award to a freedom ::18:: W.P(C).No.11865 Of 2016 fighter has also been dealt with in the judgment of this Court in ## _**Krishnankutty N. @ Swarnappan v. Union of India and Others,**_ reported in 2018 (1) KHC SN 2 (Page No.4). 9. The respondent-State Government had taken up a contention that as the petitioner was discharged as per Ext.P-1 order, he cannot be said to be eligible and entitled for the grant of Freedom Fighter's Pension under the Central Scheme. True, that although the petitioner's husband and Marian were co-accused in the abovesaid case, 7 out of the 95 accused including the petitioner's husband and Marian were discharged as per Ext.P-1 order. An identical issue has been already decided by the Full Bench of this Court in the case in _**Union of India v. Peter Devassia**_ , reported in 2003(1) KLT 467 (FB), wherein the Full Bench had categorically held that imprisonment in jail as under trial prisoner should be counted for computing the six months period of imprisonment for getting the benefit of freedom fighters’ pension and trial need not end in conviction and even if such a detained accused is acquitted or discharged, is still eligible and entitled under the Central Scheme. So long as he had suffered period of imprisonment/detention for a period of not less than 6 months on ::19:: W.P(C).No.11865 Of 2016 account of his involvement in the freedom movement, the Full Bench in para 8 of the said judgment in _**Peter Devassia’s case**_ (supra) has held that it does not matter whether the accused had languished in jail as an under trial prisoner or as a prisoner, who has ultimately convicted. That the relevant clause in the Central Scheme does not draw any distinction between imprisonment during trial which ends in conviction and that which ends in acquittal or discharge. The Full Bench approved the position of law earlier settled by a Division Bench of this Court in _**Union of India v. Lonan Benjamin,**_ reported in 2002 (1) KLT 46 (DB) and para 4 thereof reads as follows: _' “…….Explanation 3 only says that in cases ending in conviction the imprisonment as under trial prisoner and as convict, can be clubbed together to reckon the total period of six months. It does not mean that if the entire detention is as under trial prisoner, the same has to be excluded. If that was the intention, the same would have been explicitly stated. The interpretation adopted by the appellants cannot be correct, in view of Cl.4(b) of the Explanation. The said provision says that if a freedom fighter was one who remained underground as a proclaimed offender or against whom an award for arrest was pending, then he will also be eligible for pension. It means that if an accused absent himself and goes underground to escape the process of law like arrest, he will be eligible in view of this clause irrespective of the final fate of the criminal case against him. But, if he was actually arrested and remanded and while so, faced the trial which ultimately ended in his acquittal, he will not be eligible, if the Government’s contention is accepted. Further, in view of Cl.4(c) of the Explanation, a person interned in his house for six months is also eligible for pension. It means, a person even without any criminal case against him when prevented from moving out for six months from his house becomes eligible for pension. But, a person who is actually involved in a criminal case in connection with the freedom struggle and who was imprisoned for more than six months as under trial prisoner will be denied pension depending on the outcome of the criminal case against him, if the view of the Government is accepted.” '_ ::20:: W.P(C).No.11865 Of 2016 It was held by the Full Bench in _**Peter Devassia’s**_ case (supra) that the said legal position settled by the Division Bench in _**Lonan Benjamin’s**_ case (supra) is not in any manner in conflict with the legal position laid down by the Apex Court in Civil Appeal No.6210/2000. It is also relevant to note that in para 14 of _**Peter Devassia’s**_ case (supra) the Full Bench has observed that during the days of British Rule, many false cases were foisted against those who had actively participated in the freedom movement and the case of a freedom fighter who was falsely implicated in a case his imprisonment cannot be at a lower level than that in which the charge was proved and that the suffering of an innocent freedom fighter, who is ultimately discharged or acquitted is much more severe than that of a person who is ultimately found to be guilty. It is also relevant to note that in _**Gurdial Singh v. Union of India and others,**_ reported in (2001)8 SCC 8, the Apex Court has held that the standard of proof in support of the probability alone is sufficient to prove the claim of entitlement of a freedom fighter under the Central Scheme. In this context, it is profitable to refer to para 7 of _**Gurdial Singh’s**_ case reported in (2001)8 SCC 8 which reads as follows: ::21:: W.P(C).No.11865 Of 2016 _“7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of “beyond reasonable doubt”. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence.”_ 10. Before parting with this case, this Court is constrained to hold that the impugned action in differentiating between the claim of the petitioner and that made by the widow of Marian is certainly vitiated by hostile discrimination. As stated herein above, these are cases of similar and identical reasons and therefore, it is only to be conclusively held that the petitioner is entitled for the same treatment as has been afforded to Marian’s widow as per Exts.P-12, P-13 etc. 11. The petitioner has also placed reliance on the judgment of the Apex Court in the case in _**Union of India v. Kaushaalyadevi,**_ reported in 2007(9)SCC 525 and that of this Court in _**Puthusseri Valiya Veettil Thambayi Amma v. Union of India,**_ reported in 2011(3) KLT 105 that the beneficiary is entitled to have the ::22:: W.P(C).No.11865 Of 2016 pension and its arrears with effect from the date of receipt of the application, when the claim is supported by ‘ _primary evidence_ ’, unlike claims which place reliance only on secondary evidence. 12. The abovesaid submission of the petitioner that she is entitled for the grant of pension and arrears thereof under the Central Scheme with effect from the date of receipt of Ext.P-4 application, received on 04.06.1998, as her claim is supported by primary evidence and not by secondary evidence, should be duly considered and adverted to by the competent authority of the 1[st] respondent while passing orders as directed herein above. 13. In the result, it is ordered that the impugned decision taken in Ext.P-15 will stand set aside. The competent authority of the 2[nd] respondent-State Government will render necessary decision in the matter of issuance of letter of recommendation in favour of the petitioner, so as to forward the same to the competent authority of the 1[st] respondent-Union Government and action in this regard should be done by the 2[nd] respondent within one month from the date of production of a certified copy of this judgment. Upon receipt of the necessary papers from the State Government, the competent authority of the 1[st] respondent-Union Government will pass necessary orders sanctioning and disbursing ::23:: W.P(C).No.11865 Of 2016 pension under the Central Scheme, without much delay, within 6 weeks thereafter. While so passing orders, the competent authority of the 1[st] respondent-Union Government should also specifically consider the claim of the petitioner that she is entitled for pension and arrears with effect from 4.6.1998 (date of receipt of Ext.P-4 application) and not merely from the date of the sanction order or at least from the date of issuance of Ext.P-13 proceedings dated 22.7.2010 by which Marian's widow was granted pension under the Central Scheme. It is further ordered that the respondents will take necessary steps as directed in the light of the observations and findings made by this Court hereinabove. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. ## Sd/- **ALEXANDER THOMAS, JUDGE** bkn/vgd // True copy // P.A to Judge.