State of Kerala and others v. K. Bhaskaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934** **WA.No. 2282 of 2008 ( ) IN WPC/136/2005 ---------------------------------------AGAINST THE ORDER/JUDGMENT IN WPC.136/2005 DATED 23.7.2008** ## **APPELLANT(S)/RESPONDENTS:** **-------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION (FFP B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR, KOLLAM.** **3. DISTRICT ADVISORY COMMITTEE, REPRESENTED BY ITS CHAIRMAN-DISTRICT COLLECTOR COLLECTORATE, KOLLAM.** **4. THE TAHSILDAR, TALUK OFFICE, KARUNAGAPALLY.** **BY SR. GOVERNMENT PLEADER SRI.P.I.DAVIS.** **RESPONDENT(S)/PETITIONER:** **--------------------------** **K.BHASKARAN, KULAKKADA VEEDU, MARUTHOORKULANGARA SOUTH, ALUMKADAVU P.O. KARUNAGAPPALLY, KOLLAM DISTRICT.** **BY ADVS. SRI.N.DHARMADAN (SR.) SMT.D.P.RENU** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10.9.2012, THE COURT ON 20-12-2012 DELIVERED THE FOLLOWING:** **VPV** ## **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.2282 of 2008 ---------------------------------------- Dated this the 20[th] day of December 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** This appeal is filed by the respondents in W.P.C No.136/2005. 2. The writ petition is filed by the 1[st] respondent herein challenging Ext.P8 order of the Government rejecting his application for Kerala Freedom Fighters Pension. According to the respondent, he applied for payment of pension as per Ext.P1 dt.14/12/1999 along with necessary documents as required under the Kerala Freedom Fighters Pension Rules (hereinafter referred to as 'the Rules'). According to him, he had participated in the National Freedom Movement against the British Government and was under police custody and in jail for more than six months from 8[th] of Meenam 1114 to 10[th] of Kanni 1115. Criminal case was registered against him as C.C.No.36/1114. Ext.P2 series are the certificates produced from Freedom W.A.No.2282/2008 2 Fighters who were co-prisoners to prove the imprisonment of the petitioner in the Kollam Kasaba police lock-up. Ext.P3 is the certificate from the Judicial First Class Magistrate Court, Karunagappally to indicate that no records were available in respect of C.C.No.36/1114. When the matter was not considered, he submitted Ext.P5 representation and later filed O.P.No.14585/2002 before this Court and by Ext.P7 judgment dated 19/6/2004, this Court directed the Government to consider the claim of the petitioner which is rejected by Ext.P8. 3. According to the petitioner, the reason for rejection of his claim was arbitrary and illegal and that when necessary documents were produced to prove the imprisonment by way of co-prisoner's certificates, there was no reason to reject the claim. 4. The respondents, however, filed a counter affidavit supporting Ext.P8 order rejecting the claim. It was contended that the petitioner's claim was considered by the District Advisory Committee held on 29/12/2000 and decided to reject the claim. It is also stated that the enquiry conducted as per the direction of this Court reveals that the petitioner was not eligible W.A.No.2282/2008 3 for the pension. It is indicated that the Tahsildar who conducted an enquiry also reported that the petitioner was not eligible for the pension. It is further stated that Ext.P8 was issued after completing all the formalities as required under the Rules. 5. The learned Single Judge, after considering the above contentions, allowed the writ petition on a finding that the certificates issued by the same certifiers were accepted by the court in another proceedings and therefore there is no reason to reject the claim of the petitioner. The learned Single Judge also referred to the judgments in **Mukundlal Bhandari v. Union of India and others** [AIR 1993 SC 2127] and **Gurdial Singh v. Union of India and others** [2001 (3) SCC 8] in order to come to the conclusion that the standard of proof required for proving such claims can only be based on probabilities and there is no reason to establish the claim beyond any doubt. In that view of the matter, the learned Single Judge relied upon Exts.P2 (a) to P2(c) on the finding that those were issued by competent certifiers who are recipients of Central Freedom Fighters Pension and quashed Ext.P8, thereby declaring that the petitioner is entitled for pension. W.A.No.2282/2008 4 6. Learned Government Pleader, while impugning the judgment, relies upon the provisions of the Scheme in order to contend that by virtue of notification G.O.(P) No.62/2008/GAD dated 5/2/2008 a provision had been incorporated as Rule 23 which reads as under: “23. Applications /Review /Appeal Petitions received after 31/3/1994 will be considered only on production of documentary evidences from Official records such as warrant of arrest, Court Records, Jail Records clearly showing the applicant's suffering in connection with the freedom struggle.” 7. It is further contended that the claim of the petitioner was considered by the competent authority and they have come to the conclusion that in the absence of original records as mentioned above, the claim cannot be considered. Further the co-prisoners' certificates produced by the petitioner were not found to be acceptable since the certificate does not state that the certificate holders have the minimum required imprisonment sufferings of one year. That apart, the name of the movement in which the petitioner participated had not been mentioned in the certificates issued by the certifiers. The enquiry by the Tahsildar W.A.No.2282/2008 5 did not reveal that the petitioner was eligible for the pension. In view of the fact that the competent authority have already considered the matter on merits and rejected the claim, it is not open for this Court to take a different view in the matter, while exercising the power of judicial review. 8. On the other hand, the learned counsel for respondent, while supporting the judgment of the learned Single Judge, inter alia contended that in so far as the co-prisoners were getting Central Freedom Fighters Pension, their involvement in the National Freedom Struggle is already proved by orders passed by the competent authorities and therefore when they had issued Ext.P2 series certificates, there was no reason for the Government to have rejected the claim. 9. On a perusal of the Kerala Freedom Fighters Pension Rules, it is clearly indicated in Rule 20(iv) that the period of imprisonment should ordinarily be verified with reference to jail records. If the applicant for any reason is unable to furnish an extract from the convict register, the Collector may address the Superintendent of Jail concerned and obtain an extract from the Convict register pertaining to the freedom Fighter. In the case W.A.No.2282/2008 6 of Freedom Fighters of old Travancore who were only under trial prisoners or were arrested and kept under custody/ detention in the lock-ups and jails without cases being charged and without trial; for six months or more in connection with the struggle for responsible government, pension may be sanctioned to them provided the District Collector and the District Advisory Committee are satisfied, after conducting necessary enquiry. 10. Rule 23 incorporated by way of amendment clearly indicates that applications received after 31/3/1994, will be considered only on production of documentary evidence from Official records such as warrant of arrest, Court Records, Jail Records clearly showing the applicant's suffering in connection with the freedom struggle. 11. It is not in dispute that the nature of enquiry required is either based on the original records or in the case of persons who were under lock-up, the satisfaction of the District Collector and the District Advisory Committee, after conducting an enquiry and having come to a conclusion that the petitioner is eligible for pension. Apparently in the present case the documents as envisaged under Rule 23 is not produced. The W.A.No.2282/2008 7 enquiry conducted by the appropriate agency did not recommend the grant of pension. 12. The further question is to what extent judicial review is possible to take a different view from what has been taken by the Government in Ext.P8. 13. The learned Single Judge has taken into consideration the fact that persons who had certified the involvement of the petitioner in the freedom struggle are recipients of pension under the Central Scheme, therefore their certificates can be taken into consideration. We do not think such an approach can be taken in the matter. As far as the enquiry under the Rules are concerned, specific provisions are made in the Rules as to how enquiry is to be conducted by the District Collector and District Advisory Committee. Going by the specific provisions contained in the Rules, we have no hesitation to hold that authorities have to consider each case on its own facts especially in the light of the fact that original records have not been produced. Records produced by the petitioner should satisfy the requirements as contemplated under the Rules. It is purely a factual matter which is to be considered by the authorities in a fair and reasonable W.A.No.2282/2008 8 manner. When they have taken a view that the documents produced by the petitioner will not make him eligible for the pension, we do not think that the learned Single Judge was justified in directing that the said certificates can be the basis of granting pension. 14. In this regard, we would also like to highlight the judgment of the Supreme Court in **State of Orissa v. Choudhuri Nayak (D) Thr. L.Rs. and Ors.** (AIR 2010 SC 3588) wherein the Supreme Court held as under: “8. This Court in Mukund Lal Bhandari v. Union of India [1993 Supp. (3) SCC 2] : (AIR 1993 SC 2127 : 1993 AIR SCW 2508), Gurdial Singh v. Union of India [2001 (8) SCC 8] : (AIR 2001 SC 3883 : 2001 AIR SCW 3843) and State of M. P. v. Devkinandan Maheshwari [2003 (3) SCC 183] : (AIR 2003 SC 1136 : 2003 AIR SCW 680) considered the object of the Freedom Fighters Pension scheme and indicated what should be the approach of the authorities in dealing with the applications for pension under the scheme. We may summarize them as under : (i) The object of the scheme was to honour, and where necessary, to mitigate the sufferings of those who had struggled to achieve W.A.No.2282/2008 9 independence for the country. Many freedom fighters, even though they did not have sufficient income to maintain themselves, would even be reluctant to receive the Pension under the Scheme, as they would consider it as putting a price on their patriotism. The spirit of the Scheme being both to assist and honour the freedom fighters and acknowledge the valuable sacrifices made by them, the authorities should treat the applicants with respect and courtesy. The scheme should not be converted into some kind of routine scheme for payment of compensation. (ii) The persons intended to be covered by the Scheme are those who sacrificed and suffered for achieving the independence of the country, without expecting any reward for their sacrifice and sufferings. Therefore they can not be expected to maintain and produce perfect records or documents about their participation in the freedom struggle. (iii) Once the country has decided to honour freedom fighters by granting a pension, the approach of the authorities implementing the scheme should not be obstructionist or technical while examining the applications and documents produced, but be practical having regard to the W.A.No.2282/2008 10 fact that most of the applications are by old persons with no proper records. (iv) The criterion for pension under the scheme is not age, but participation in freedom struggle. The freedom fighters pension can, therefore, in exceptional cases, be granted even to those who were minors at the time of struggle, if evidence clearly showed that they had participated in the freedom struggle and fulfilled the requirements of the scheme. The above principles were spelled out to ensure that no genuine freedom fighter was denied pension under the scheme.” 15. Therefore satisfaction of the authorities concerned is very important. The documents produced or made available during enquiry should point towards the eligibility of the petitioner to get pension as per the scheme. The judgment of the Supreme Court above mentioned has been relied upon by this Court while considering the question of grant of pension under the Central Scheme in **Union of India v. Lennyamma and others** [ILR 2012(3) Kerala 649]. This Court had clearly indicated in the said judgment that compliance of the Rules for W.A.No.2282/2008 11 the grant of pension has to be properly analysed by the sanctioning authority and the authority has to satisfy itself about the genuineness of the claim. 16. In these circumstances, we are of the view that the opinion expressed by the learned Single Judge to accept Ext.P2 series as valid documents to justify the claim of the petitioner for pension is against the provisions of the Rules and therefore we set aside the judgment of the learned Single Judge and allow the appeal. 17. However it is made clear that if the petitioner is in a position to produce any documents to prove his entitlement for pension, it is open for him to approach the authorities concerned afresh. Writ Appeal is allowed as above. (sd/-) **(MANJULA CHELLUR, CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.A.No.2282/2008 12 W.A.No.2282/2008 13 W.A.No.2282/2008 14