Thankamma @ Vilasini v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF JULY 2018 / 8TH SRAVANA, 1940** **WP(C).No. 25451 of 2018** ## **PETITIONER :** **THANKAMMA @ VILASINI, W/O.LATE T.A.KRISHNAN, GOURISA BHAVANAM, AROOR PANCHAYAT, CHANDIROOR P.O., VELUTHULLY COLONY, CHERTHALA TALUK, ALAPPUZHA - 688 547.** **BY ADV.SRI.K.K.SATHEESH** ## **RESPONDENTS :** **1. UNION OF INDIA, REPRESENTED BY THE DEPUTY SECRETARY TO GOVT., MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, NEW DELHI CITY CENTRE - II BUILDING, 2ND FLOOR, PARLIAMENT STREET, NEW DELHI - 110 001.** **2. THE SECRETARY TO GOVT., GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVNANTHAPURAM - 695 001.** - **ADDL. RESPONDENTS 3 & 4 ARE IMPLEADED:** **3. THE DISTRICT COLLECTOR, ALAPPUZHA.** **4. THE SUPERINTENDENT OF POLICE, ALAPPUZHA.** - **ADDL.RESPONDENTS 3 & 4 ARE SUO MOTU IMPLEADED AS PER ORDER DATED 30.7.2018.** - **R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** - **SRI.T.V.VINU, CGC** **R2-R4 BY SENIOR GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 25451 of 2018 (F)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXT.P1: TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 25/11/1980 EXT.P2: TRUE COPY OF THE APPLICATION DATED 16/04/1998 SUBMITTED BY THE PETITIONER'S LATE HUSBAND TO THE RESPONDENTS. EXT.P3: TRUE COPY OF THE NARC ISSUED BY THE CJM COURT, CHERTHALA EXT.P4: TRUE COPY OF THAT NARC ISSUED BY THE SUPDT. OF POLICE, ALAPPUZHA EXT.P5: TRUE COPY OF THE PKC ISSUED BY SRI.H.K.CHAKRAPANI DATED 04/10/2003 EXT.P6: TRUE COPY OF THE EXTRACT OF CONVICT REGISTER OF CENTRAL PRISON, TRIVANDRUM ISSUED BY THE SUPDT. IN RESPECT OF SRI.H.K.CHAKRAPANI EXT.P7: TRUE COPY OF THAT JUDGMENT DATED 06/10/2008 PASSED BY THIS HON'BLE COURT IN WPC.NO.17636/2005 EXT. P8: TRUE COPY OF THE ORDER NO.52/CC/K/99/2005-FF/SZ DATED 09/03/2009 ISSUED BY THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF THE LETTER NO.74803/FFP.A2/2005/GAD DATED 03/06/2010 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT EXT.P10: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 31/08/2010 EXT.P11: TRUE COPY OF THE JUDGMENT DATED 13/01/2016 PASSED BY THIS HON'BLE COURT IN WPC.NO.16358/2013 EXHIBIT P12: TRUE COPY OF THE RODER NO.52/CC/K/01/2010-FF/SZ DATED 28/01/2016 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL 3.8.2018** ## **ALEXANDER THOMAS, J. ========================** ## **W.P(C)No. 25451 of 2018** **=========================** Dated this the 30[th] day of July, 2018 ## **JUDGMENT** The petitioner is essentially aggrieved by the impugned Ext.P-12 order dated 28.01.2016 issued by the 1[st] respondentUnion Government, whereby the claim of the petitioner for grant of Freedom Fighters' dependent Pension under the central Swatantrata Sainik Samman (SSS) Pension Scheme, 1980, on account of her deceased husband's participation in the PunnapraVayalar Movement has been rejected. The prayers in this Writ Petition (Civil) are as follows: - _“i) declare that the petitioner is entitled to get the benefit of “Swatantrata Sainik Samman Pension” (SSS Pension) due to her late husband._ _ii) call for the records leading to the issue of Exhibit-P12 and quash its original by issuance of a writ of certiorari;_ _iii) Issue a writ of mandamus or other appropriate writ, direction or order, compelling the 2[nd] respondent to issue a valid Non-availability of records certificate(NARC) in the prescribed format in the light of the Judgment of the Division Bench of this Hon'ble Court in_ _**Union of India Vs. Lennyamma reported 2012(3) KLT 852** , and on receipt of the same, the 1[st] respondent may be directed to grant the benefit of SSS Pension to the petitioner with the actual arrears due to her, within a stipulated time._ _iv) Issue any other appropriate writ, direction or order as this Hon'ble Court deems fit and proper in the nature and circumstances of the case.”_ W.P(C)No. 25451 of 2018 2 2. Heard Sri.K.K.Sathish, learned counsel appearing for the petitioner, Sri.T.V.Vinu, learned Assistant Solicitor General, appearing for R1-Union of India and Sri.Saigi Jacob Palatty, learned Sr.Government Pleader appearing for the 2[nd] respondent and additional respondents 3 and 4. 3. Without getting entangled into the various factual aspects of this case, it is to be noted that the petitioner has placed reliance on a Personal Knowledge Certificate (P.K.C) issued by one Sri.H.K.Chakrapani, who was granted Freedom Fighters' Pension both under the State Scheme and the Central Scheme and who had also participated in the Punnapra-Vayalar Movement, in support of the claim that her deceased husband, T.A.Krishnan had to remain underground for more than the requisite 6 months period on account of warrant of arrest issued to him due to his active involvement in the Punnapra-Vayalar Movement in case No.P.E.5/1122 ME on the file of the First Class Magistrate’s Court, Cherthala. The petitioner's deceased husband was the recipient of the Freedom Fighters' Pension under the State Scheme as evidenced by Ext.P-1 dated 25.11.1980. As the petitioner's application under the Central Scheme was not properly responded W.P(C)No. 25451 of 2018 3 to by both the 2[nd] respondent-State authorities and the 1[st] respondent-Union Government authorities, the petitioner was earlier constrained to file a Writ Petition (Civil) No.17636/2005 in which this Court had rendered Ext.P-7 judgment dated 06.10.2008, whereby the respondent-State Government was directed by this Court to consider the claim afresh and to take into account the Personal Knowledge Certificate issued by Sri.H.K.Chakrapani and the other certificates and documents produced by the petitioner and to take a decision in the matter of issuance of the fresh verification-cum-entitlement report and the recommendation in that regard that will be decided by the State Government and that the decision of the State Government in that regard should be conveyed to the 1[st] respondent-Union Government, upon which the said respondent-Union Government was directed to pass final orders on the application of the petitioner within 2 months thereafter etc. It appears that pursuant Ext.P-7 judgment, the 2[nd] respondent-State Government had issued Ext.P-8 letter dated 09.03.2009, holding that the petitioner does not meet the eligibility criteria and evidentiary requirements of the Central Scheme and that the petitioner is not eligible for the W.P(C)No. 25451 of 2018 4 grant of Freedom Fighters' dependent family pension and NARC was also not issued by the State Government. It appears that thereafter, the 2[nd] respondent-State Government had issued Ext.P-9 letter dated 03.06.2010 addressed to the 1[st] respondentUnion Government stating that in the light of the legal opinion received from the office of the Advocate General of Kerala, in the Contempt of Court Case instituted by the petitioner, the 2[nd] respondent-State Government has decided to recommend the case of the petitioner along with their verification-cum-entitlement report. But it appears that even in Ext.P-9 of the 2[nd] respondentState Government has not formally issued the NARC. The State authorities did not make any attempt to ascertain from the competent authorities-the District Collector, Alappuzha, etc. as to the availability or otherwise of records and had not taken into account Ext.P-3 NARC issued by the Judicial First Class Magistrate’s Court-I, Cherthala, Ext.P4 NARC issued by the Superintendent of Police, Alappuzha etc. Since no further action was forthcoming from the 1[st] respondent-Union Government even after the issuance of Ext.P-9, the petitioner was again constrained to approach this Court by filing writ petition as W.P(C)No. 25451 of 2018 5 W.P(C)No.16358/2013 which was disposed of by this Court as per Ext.P-11 judgment dated 13.01.2016, whereby the respondentUnion Government was directed to take a final decision on the claim of the petitioner in the light of the recommendation made by the 2[nd] respondent-State Government as per Ext.P-9 herein. It is thereafter, the 1[st] respondent-Union Government has again rejected the claim of the petitioner as per the impugned Ext.P-12 order dated 28.01.2016. The main grounds recited in Ext.P-12 for rejecting the claim of the petitioner is that the formal NARC has not been issued by the State Government in the prescribed proforma and that in the absence of NARC, the secondary evidence produced as per the Personal Knowledge Certificate issued by Sri. H.K.Chakrapani cannot be considered. Further that, the State Government has in certain other cases raised doubts on the reliability and acceptability of Personal Knowledge Certificate issued by Sri.H.K.Chakrapani etc. and further that the said Sri.H.K.Chakrapani who has issued Ext.P-5 Personal Knowledge Certificate is not an eligible certifier as per the Central Scheme and further that, enquiry has been initiated by the State Government in respect of discrepancies given in similar Personal Knowledge W.P(C)No. 25451 of 2018 6 Certificates issued by Sri.H.K.Chakrapani on the one hand and certain other certifiers on the other hand in favour of one Shri.K.Varghese etc. 4. This Court has already considered the objection raised regarding the reliability and acceptability of the Personal Knowledge Certificate issued by Sri.H.K.Chakrapani in a series of cases and as per a common judgment dated 05.07.2018 in W.P(C)No.10568/2013 and connected cases had remitted the matter to the respondent-State Government authorities to consider the issue as to the reliability and acceptability of the Personal Knowledge Certificate issued by Sri.H.K.Chakrapani in each of those cases and then convey the decision in each of those cases that regard to the respondent-Union Government and also to decide on the ancillary issues relating to the grant of NARC etc. Since a view has already been taken by this Court in that regard and the matter regarding the acceptability or otherwise of the Personal Knowledge Certificate issued by Sri.H.K.Chakrapani has already been remitted to the respondent-State Government authorities, in the abovesaid common judgment dated 05.07.2018, it is only proper that the same course of action is adopted in this W.P(C)No. 25451 of 2018 7 case as well. Moreover, the State Government has not issued the formal NARC (Non-availability of Record Certificate), in the proforma prescribed as per the Central Scheme. The matter in that regard is also covered by the common judgment dated 13.02.2012 in Writ Appeal No.382/2010 and connected cases, in the judgment in _**Union of India v. Lennyamma**_ reported in 2012 (3) KLT 852, whereby the Division Bench of this Court had remitted the matter to the respondent-State Government for considering afresh on the decision to be taken by that authority in matters relating to the issuance of NARC and that a proper enquiry should be conducted and before the State Government takes decision in that regard etc. It is seen that Ext.P-3 is the NARC issued by the Judicial First Class Magistrate’s Court-I, Cherthala regarding the non-availability of records in relation to P.E.No.5/1122 ME, on the file of the First Class Magistrate’s Court, Cherthala and Ext.P-4 is the NARC issued by the Superintendent of Police, Alappuzha. 5. Accordingly, the matter will stand remitted to the respondents, for consideration of the abovesaid issues and claim of the petitioner afresh. For facilitating such a remit, Exts.P-9 and W.P(C)No. 25451 of 2018 8 P-12 will stand set aside. The competent authority among the 2[nd] respondent-State Government will grant a reasonable opportunity of being heard to the petitioner and will decide on the issues as to the reliability and acceptability or otherwise of the Personal Knowledge Certificate issued by Sri.H.K.Chakrapani, as per Ext.P-5 in this case and taking into note, the directions and observations already rendered by this Court in common judgment dated 05.07.2018 in W.P(C)No.10568/2013 and connected cases. The petitioner may submit her written submission in advance to the 2[nd] respondent along with the certified copy of this judgment, for their consideration. Further, the 2[nd] respondent-State Government will ascertain from the 3[rd] respondent-District Collector, Alappuzha and the 4[th] respondent-Superintendent of Police, Alappuzha as to whether records pertaining to P.E.No.5/1122 ME, on the file of the First Class Magistrate’s Court, Cherthala are available in their offices and if no such records are available, respondents 3 and 4 will issue NARCs to the 2[nd] respondent certifying about the non-availability of such records. In order to save time and to avoid further delay, it is ordered that the office of the Advocate General will forward W.P(C)No. 25451 of 2018 9 certified copies of the judgment to R2 to R4 and thereafter R3 and R4 will ascertain from their files and records as to whether records pertaining to P.E.No.5/1122 ME, on the file of the First Class Magistrate’s Court, Cherthala are available with their respective offices. If no such records are available, the requisite NARC should be issued by them, so as to reach the office of the 2[nd] respondent-State Government, within one month from the date of receipt of a certified copy of this judgment in that regard. The respondent do not have any serious objections as against Ext.P-3 NARC issued by Judicial First Class Magistrate’s Court-I, Cherthala. 6. It is ordered that the 2[nd] respondent can place reliance on Ext.P-3 NARC issued by the Judicial First Class Magistrate’s Court-I, Cherthala. So in case, 3[rd] and 4[th] respondents also issue NARCs from the respective offices, then, the State Government should act upon the such NARCs issued by those authorities as well as Ext.P-3 NARC issued by the Judicial First Class Magistrate’s Court-I, Cherthala and then take a decision in the matter of the formal issuance of the NARC by them in the proforma prescribed under the Central Scheme. The entire W.P(C)No. 25451 of 2018 10 formalities in this regard should be duly completed by the competent authority of the 2[nd] respondent, within 3 months from the date of production of a certified copy of this judgment. The formal letter issued by the 2[nd] respondent-State Government conveying their decision of the abovesaid aspects, to the 1[st] respondent-Union Government shall be forwarded to the petitioner as well. The competent authority of the 1[st] respondentUnion of India will take the final decision on the claims of the petitioner for Freedom Fighters' Family Dependent Pension under the Central Scheme, within 6 weeks from the date of receipt of the communication in that regard, that may be issued by the 2[nd] respondent-State Government, in compliance with the directions as aforestated. With the above observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** vgd/01.08.18