Smt. K.V. Madhavi Amma v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 24TH DAY OF FEBRUARY 2012/5TH PHALGUNA 1933** **WP(C).No. 31426 of 2011 (C) ---------------------------** **PETITIONER: ----------SMT.K.V.MADHAVI AMMA W/O.LATE PULIKKOOL CHERIYA KRISHNAN NAIR MALAPPURAM P.O., SREEKANDAPURAM, KANNUR DISTRICT** **BY ADV. SRI.O.D.SIVADAS** **RESPONDENTS: ------------** **1. UNION OF INDIA, REPRESENTED BY THE UNDER SECRETARY TO GOVERNMENT MINISTRY OF HOME AFFAIRS FREEDOM FIGHTER'S DIVISION, LOK NAYAK BHAVAN NEW DELHI-110001.** **2. THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION, LOK NAYAK BHAVAN, KHAN MARKET NEW DELHI-110001.** **3. THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFP.B) DEPARTMENT THIRUVANANTHAPURAM-695001 R1 AND R2 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R3 BY GOVERNMENT PLEADER SRI.JOSEPH GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2402-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STK** ## **WP(C).No. 31426 of 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1 TRUE EXTRACT OF THE UNDER TRIAL REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL, KANNUR. EXT.P2 TRUE EXTRACT OF THE CONVICT REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL, KANNUR. EXT.P3 TRUE COPY OF THE PROCEEDING DATED 10/3/1975. EXT.P4 TRUE COPY OF THE PROCEEDING DATED 7/2/1977. EXT.P5 TRUE COPY OF THE PROCEEDING DATED 19/7/1979. EXT.P6 TRUE COPY OF THE LETTER DATED 7/8/1975 ISSUED BY THE PETITIONER'S HUSBAND. EXT.P7 TRUE COPY OF THE PROCEEDING DATED 2/1/1974 GRANTING STATE PENSION TO THE PETITIONER'S HUSBAND. EXT.P8 TRUE COPY OF THE PROCEEDING NO.6/1/97-FF(P) DATED 20/1/1998 ISSUED BY THE GOVERNMENT OF INDIA. EXT.P9 TRUE COPY OF THE APPLICATION DATED 01/04/1998 SUBMITTED BY THE PETITIONER. EXT.P10 TRUE COPY OF THE PROCEEDING OF THE 3RD RESPONDENT DATED 10/11/2004. EXT.P11 TRUE COPY OF THE JUDGEMENT IN WPC.12617/2010 DATED 8/4/2010. EXT.P12 TRUE COPY OF THE PROCEEDING OF THE 2ND RESPONDENT DATED 12/10/2011. ## **RESPONDENTS' EXHIBITS: NIL** ## **//TRUE COPY//** **P A TO JUDGE** ## **STK** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.31426 of 2011 ---------------------------------------------Dated this the 24[th] day of February, 2012 ## **JUDGMENT** The petitioner's husband late Pulikkool Cheriya Kirshnan Nair was a freedom fighter, who participated in the Kavumbai struggle and undergone imprisonment as a result thereof. He applied for pension to the Government of India under a Scheme of the Government of India for granting pension to freedom fighters, which was in force at the relevant time, and he was granted pension by Ext.P3 order. Later on, the petitioner's husband died and the pension was sanctioned in favour of the petitioner. Subsequently, by Ext.P5 order, the said sanction was cancelled on the ground that Kavumbai struggle was not recognised as part of the freedom struggle, for grant of central pension. Later, both the State Government and the Central Government recognised the Kavumbai struggle also as part of the freedom struggle and pursuant to the same, the petitioner submitted an application for pension under the SSS Pension Scheme in respect of the jail sufferings of the petitioner's W.P.(C)No.31426/11 2 husband. To prove the jail sufferings, the petitioner filed Exts.P1 and P2 certificates from the Superintendent of Central Jail, Kannur who certified that the petitioner's husband was both an under trial prisoner and a convicted prisoner in that jail. By Ext.P10, the State Government recommended pension to the petitioner under the SSS Pension Scheme to the Central Government. Pursuant to Ext.P11 judgment, the 1[st] respondent considered the claim of the petitioner and rejected it by Ext.P12 order on the ground that the State Government, while recommending the petitioner's case stated that the records of the Kannur Central Prison were not available to verify the genuineness of Exts.P1 and P2. It is under the above circumstances, the petitioner has filed this writ petition seeking the following relief: “i) issue a writ of mandamus or other appropriate writ, order or direction to the 1[st] and 2[nd] respondents to sanction and disburse the Swantantrata Sainik Samman Pension to the petitioner with arrears from the date of application without any delay.” 2. A counter affidavit is stated to have been filed by the 1[st] respondent, where they support Ext.P12 order, which is not available in the file of this writ petition. 3. I have considered the rival contentions in detail. 4. Exts.P1 and P2 are extracts from the registers of 3 W.P.(C)No.31426/11 under trial prisoners and convicted prisoners of the Central Jail, Canannore duly certified by the then Superintendent of the Jail, as true extract. It also bears the seal of the jail. Nobody has any case before me that those documents are forged documents or concocted documents. In fact based on the very same documents, the Central Government themselves had earlier granted pension to both the petitioner's husband as well as to the petitioner. The orders granting pension was earlier cancelled not on the ground of want of proof of the jail sufferings of the petitioner's husband, but only because the Kavumbai struggle was not then recognised as part of the freedom struggle. Even after filing of the second application, the State Government recommended the petitioner's case, of course by saying that the genuineness of the jail records produced by the applicant could not be verified at that time, as the original was destroyed due to efflux of time. Whatever that be, nothing prevented the State from verifying Exts.P1 and P2 by ascertaining whether the signature obtaining therein, as that of the Superintendent of Jail in 1973 is his signature. In the above circumstances, I am inclined to accept those documents as genuine documents, insofar as nobody has disputed before me the genuineness of the same on any valid 4 W.P.(C)No.31426/11 ground. Added to that, the Central Government themselves had, earlier, based on the very same documents, sanctioned pension to both the petitioner's husband as well as the petitioner. As such it is too late in the day for them to take the stand that the petitioner has not proved the jail sufferings of her husband. Therefore, I am satisfied that the petitioner is entitled to pension under the SSS Pension Scheme based on the jail sufferings of her husband in the freedom struggle as proved by Exts.P1 and P2. Therefore there would be direction to the 1[st] respondent to pay to the petitioner pension under the SSS Pension Scheme with arrears from the date of application. Arrears shall be paid with interest at the rate of 6% per annum to the petitioner, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The petitioner shall also be paid costs of Rs.10,000/- (Rupees ten thousand only) along with the arrears. Arrears shall be paid with effect from April 1998, which is the date of application. while holding so, I also note that in an identical case, a learned Judge of this Court has in _**Krishnankutty**_ v. _**Union of India**_ [2003(1) KLT 21], held that after having earlier sanctioned pension on the basis of the very same documents submitted, later on, the pension cannot be W.P.(C)No.31426/11 5 denied on the ground that those documents accepted earlier were not genuine. The writ petition is allowed as above. **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.31426/11 6