Thidil Kuttiattu Narayani Amma v Union of India and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931** **WP(C).No. 33068 of 2009(C)** **----------------------------------------** **PETITIONER(S):** **------------------------** **THIDIL KUTTIATTU NARAYANI AMMA, W/O. THENGIL CHANDROTH KRISHNAN NAMBIAR, AGED 80 YEARS, THIDIL KUTTIATTU HOUSE, ERUVESSY.P.O., KANNUR DISTRICT,PIN-670 632.** **BY ADV. SMT.K.R.KRISHNAKUMARI** **RESPONDENT(S):** **---------------------------** **1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI.** **2. THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI.** **3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. MR.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R3 BY GOVERNMENT PLEADER MR. V. MANU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.33068/2009 C** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE EXTRACT OF THE CONVICT REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL, CANNANORE IN RESPECT OF CONVICT NO.5132, VIZ. LATE THENGIL CHANDROTH KRISHNAN NAMBIAR.** - **P2: COPY OF THR RELEVANT PAGE OF THE KERALA FREEDOM FIGHTERS' PENSION RULES, 1971.** - **P3: COPY OF THE ORDER NO.R.DIS.53506/73 DTD. 22/11/1973 ISSUED BY THE DISTRICT COLLECTOR, CANNANORE.** - **P4: COPY OF THE ORDER NO.M2.67621/89 DTD. 11/12/1989 ISSUED BY THE DISTRICT COLLECTOR, CANNANORE.** - **P5: COPY OF THE LETTER NO.6/1/97-FF(P) DTD. 20/01/1998 ISSUED BY THE 2ND RESPONDENT TOTHE 3RD RESPONDENT.** - **P6: COPY OF THE SWATANTRATA SAINIK SAMMAN PENSION SCHEME,1980.** - **P7: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 2 & 3 IN APRIL, 1998.** - **P8: COPY OF THE LETTER NO.119/1/GENERAL-1/98-FF.SZ DTD. 17/09/1998 ISSUED BY THE FIRST RESPONDENT TO THE 3RD RESPONDENT.** - **P9: COPY OF THE LETTER NO.119/494/83-FF/SZ DTD. 13/09/1999 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT.** - **P10: COPY OF THE REMINDER DTD. 28/05/2009 SENT BY THE PETITIONER TO THE RESPONDENTS 1 AND 3.** - **P11: COPY OF THE THAMRAPATRA DTD. 15/08/1972 ISSUED BY THE 1ST RESPONDENT.** - **P12: COPY OF THE LETTER NO.49275/FFPA2/99/GAD DTD. 22/07/1999 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT.** - **P13: COPY OF THE LETTER NO.K.DIS.M5-22465/83 DTD. 24/05/1999 ISSUED BY THE DISTRICT COLLECTOR, KANNUR TO THE 3RD RESPONDENT.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## ANTONY DOMINIC, J. ------------------------- ## W.P.(C.) No.33068 of 2009 (C) --------------------------------Dated, this the 8[th] day of March, 2010 ## J U D G M E N T The prayer sought in this writ petition is to quash Ext.P9 and to direct respondents 1 & 2 to sanction and disburse the Swatantrata Sainik Samman Pension to the petitioner with arrears from the date of Ext.P7 application. 2. The petitioner is the widow of Shri.Thengil Chandroth Krishnan Nambiar. Late Shri.Nambiar had participated in the Kavumbai Movement and he was an accused in CC No.1/47 charge sheeted in that connection. He was convicted for an offence under Section 147 of the Indian Penal Code and was arrested and was remanded to Jail on 03/01/1947. He was convicted by the Joint Magistrate, Tellicherry and was released from imprisonment only on 25/08/1947. 3. Ext.P2 is the Kerala Freedom Fighters' Pension Rules, 1971. From Ext.P3 order dated 22/11/1973, it is seen that pension under Ext.P2 was sanctioned to Shri.Nambiar with effect from WP(C) No.33068/2009 -2- 01/04/1971. Shri.Nambiar expired on 03/08/1989. Subsequently, by Ext.P4 order, the petitioner, his widow, was sanctioned pension under Ext.P2, which she is getting even now. 4. In so far as this writ petition is concerned, the issue raised is regarding her claim for pension under Ext.P6, Swatantrata Sainik Samman Pension Scheme, 1980. Admittedly, the petitioner, being a widow, is an eligible dependent as her husband Shri.Nambiar had undergone imprisonment for more than six months and was an eligible freedom fighter. It is seen that by Ext.P7 dated 07/04/1998, the petitioner applied for pension under Ext.P6, enclosing Ext.P1 and also Ext.P11, the Thamrapathra that was awarded to her deceased husband. 5. On receipt of the application, a report was called for from the State Government as per Ext.P8 dated 17/09/1998. It is stated that in response thereof, Ext.P12 report was submitted by the State Government enclosing Ext.P13 report of the District Collector. After receipt of Exts.P12 & P13, the Central Government issued Ext.P9 dated 13/09/1999 calling upon the State Government to get the documents verified from the concerned Jail authorities and send WP(C) No.33068/2009 -3- a report once again. According to the learned Government Pleader, on receipt of Ext.P9, report was sent on 25/10/2004 and 07/01/2010. In any case, there has not been any progress in the matter. Therefore, the petitioner submitted Ext.P10 representation dated 28/05/2009 and to that also has not been any response. It is in these circumstances, this writ petition has been filed. 6. The petitioner contends that admittedly her husband, having satisfied all the eligibility criteria laid down in Ext.P6, is eligible for pension under Ext.P6. It is stated that added to that, applying similar standards, he was granted the benefit of Ext.P2, the State Scheme, and therefore, the Government of India ought not have insisted on further production of documents and delayed the claim any further. It is stated that the fact that the petitioner's husband was a freedom fighter, has been recognised by the Central Government itself by awarding Ext.P11, the Thamrapathra. 7. Although, it is true that the Central Government is entitled to assess the eligibility of an applicant for the benefit of Ext.P6, such assessment should not be stretched too far and should not result in defeating the claim of an eligible person. This is all the WP(C) No.33068/2009 -4- more so, in a case of this type, where the petitioner's husband has already been recognised as a freedom fighter in terms of the State Rules, where also the eligibility standards laid down are more or less the same. In such circumstances, I feel the Central Government had taken too technical an approach, which it should not have, in a matter of this type. 8. The Apex Court had occasion to deal with an identical issue in Gurdial Singh v. Union of India and Others (2001(8) SCC 8), paragraph 7 of which reads as under:- “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 WP(C) No.33068/2009 -5- 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.” Following that judgment, this Court has held in Augusthy Mathai v. Union of India (2008(1) KHC 977) that when State Government recommends the name of an applicant after a detailed enquiry and after obtaining crucial inputs from responsible officials and after verifying the certificates, the Central Government should not insist on further proof from jail authorities, and that hyper technical approach and insistence of minute details are unwarranted. These principles have again been reiterated by this Court in the judgment in WP(C) No.24845/2006 rendered on 30/01/2009. 9. Having regard to the law thus laid down in the aforesaid judgments, I feel the petitioner is entitled to succeed. Therefore, I quash Ext.P9 and direct respondents 1 & 2 to extend the benefit of Ext.P6 to the petitioner with effect from the date of receipt of Ext.P7 application. This shall be done as expeditiously as possible, at any rate, within two months of production of a copy of this judgment. WP(C) No.33068/2009 -6- Although this is a case, in which I am satisfied that the petitioner deserves to be awarded interest, still in order to give a quietus to the issue, I am not awarding the same. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg