Union of India and Deputy Secretary to Government of India v K.K. Devaki

W. A. No. 1828 of 2018 -1- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, ``` ``` 1944 ``` ``` WA NO. 1828 OF 2018 ``` ``` AGAINST THE JUDGMENT WP(C) 17066/2011 OF HIGH COURT OF ``` ``` KERALA ``` ## **`APPELLANT/S:`** ``` 1UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION, 2ND FLOOR, NDCC-2 BUILDING, PARLIAMENT STREET, NEW DELHI. 110003 ``` ``` 2THE DEPUTY SECRETARY TO GOVERNMENT OF INDIA FREEDOM FIGHTER'S DIVISION, MINISTRY OF HOME AFFAIRS LOK NAYAK BHAVAN, NEW DELHI 110003. BY ADVS. ``` ``` MANU S., DSG OF INDIA SRI.JAISHANKAR V.NAIR, CGC ``` ## **`RESPONDENT/S:`** ``` K.K.DEVAKI W/O.THAZHE OTHAYOTH KRISHNAN, KULINHIL KANNOTH HOUSE, BLATHUR, KALLIAD POST, IRIKKUR, KANNUR DISTRICT. ``` ``` BY ADV. VINAYA ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. A. No. 1828 of 2018 -2- ## **J U D G M E N T** ## Shaji P. Chaly, J. Respondents in W. P. (C) No. 17066 of 2011 have preferred the appeal challenging the judgment of the learned Single Judge dated 16.12.2016 whereby the writ petition was allowed and directions are issued to the respondents to sanction pension to the writ petitioner / respondent under the Swatantrata Sainik Samman (SSS) Pension Scheme with effect from the date of application, i.e. 20.07.1998, with a further rider that the arrears shall be paid within a period of four months. It is thus challenging the legality and correctness of the judgment of the learned Single Judge, the appeal is preferred. 2. Brief facts for the disposal of the appeal are as follows:- 3. Petitioner’s husband late Thazhe Othayoth Krishnan is a freedom fighter who participated in the freedom struggle and was arrested in connection with the Kavumbhai struggle and had undergone imprisonment, which is a recognized freedom struggle. Accordingly, the State Government sanctioned freedom fighters pension to the petitioner as per an order dated 20.01.1998. It is the case W. A. No. 1828 of 2018 -3- of the petitioner that the Central Government has also recognized Kavumbhai struggle as part of the freedom struggle. Therefore, the petitioner submitted an application on 20.07.1998 for SSS Pension, under registered post with acknowledgement due, which was received by the Central Government during July 1998 itself. Anyhow the Central Government forwarded the same to the State Government as per proceedings dated 10.11.2004. Pursuant to the recommendation of the State Government, the appellants have granted SSS Pension to the writ petitioner from 10.11.2004 onwards. The case projected by the petitioner in the writ petition is that petitioner is entitled to get the pension from the date of application, and accordingly, sought direction to disburse the arrears of SSS Pension with other monetary benefits to the petitioner at the earliest. 4. After considering the rival submissions and taking into account the fact that the SSS Pension was granted by the appellants to the petitioner, the learned Single Judge directed that the petitioner is entitled to get the pension from the date of application i.e. 20.07.1998. 5. According to the appellants, the direction issued by the learned Single Judge to grant the pension from the date of application W. A. No. 1828 of 2018 -4- cannot be sustained under law. It is further contended that it would be unreasonable to release the payment of arrears with effect from 20.07.1998 as the State Government had not recommended for dependent family pension until 09.11.2004. It is also pointed out that as per the Scheme, the verification recommendation report from the concerned State Government is mandatory in view of the fact that the documents and other evidence of the claims are in the possession of the State Government. It is further pointed out that the appellants would process the application only on receipt of verification and recommendation report for pension from the concerned State Government. It is further contended that the learned Single Judge was not right in stating that the writ petitioner was granted the pension on the basis of the jail certificate alone since the extract of the jail records could not be verified as it had been destroyed due to the efflux of time. Other contentions are also raised. 6. We have heard Sri. Jaishankar V. Nair, learned Central Government Counsel for the appellants and Smt. Vinaya, learned counsel for the respondent and perused the pleadings and material on record. W. A. No. 1828 of 2018 -5- 7. The entitlement of the petitioner for securing SSS Pension as per the Scheme 1980 on account of the participation of the husband of the petitioner in the freedom struggle was concluded since the appellants have found that the petitioner’s husband had participated in the freedom struggle and therefore the petitioner is entitled to get the dependent pension. The sole question that is raised by the appellants is that the petitioner is not entitled to get the pension from the date of the application especially due to the fact that the State Government had made the recommendation after verifying the records only in the year 2004. 8. In our considered opinion, the learned Single Judge has disposed of the writ petition basically relying upon the judgment of this Court in **Bharathi Krishnan v. Union of India [2012 (1) KLT SN 116]** by which after referring to several other judgments it was found that the beneficiary would be entitled to get the pension with effect from the date of receipt of the application when the claim is supported by primary evidence i.e. the jail certificate; unlike other cases sought to be substantiated by secondary evidence where it shall be with effect from the date of the order. W. A. No. 1828 of 2018 -6- 9. Once it is accepted that the pension was granted by the appellants with effect from 2004 based on the jail certificate, the appellants are not entitled to retract from the decision so taken stating that the jail certificate is issued by the authority without taking into account the records available with the jail authorites. If that was the case, the appellants ought to have rejected the application. Here is a case where the appellants were satisfied from the documents produced by the petitioner as well as the recommendation made by the State Government that the writ petitioner is entitled to the dependent pension under the SSS Pension Scheme. Once the jail certificate is accepted as valid, the eligibility to get the pension dates back to the date of application, which is the undisputed provision under the scheme 1980. 10. Therefore, in our considered opinion, the appellants have not made out any case for interference with the judgment of the learned Single Judge there being no jurisdictional error or other legal infirmities justifying us to do so. 11. The Hon’ble Apex Court has considered the question with respect to how an application under the scheme has to be considered in **Gurdial Singh v. Union of India and Others [(2001) 8 SCC 8]** and W. A. No. 1828 of 2018 -7- held that the standard of proof in the case of freedom fighters pension need not be proof beyond reasonable doubt and it need only be probabilized that the claimant had suffered imprisonment for the cause of the country during the freedom struggle and a presumption is required to be drawn in his favour, unless the same is rebutted by cogent, reasonable and reliable evidence. Relevant portion of the said judgment reads thus:- “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 scheme have 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 touch-stone of the test of 'beyond W. A. No. 1828 of 2018 -8- 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.” Taking into account the facts, circumstances and the law discussed above, we have no hesitation to hold that the appellants have not made out any case for interference in an intra court appeal filed under Section 5 of the High Court Act 1958. Needless to say, appeal fails. Accordingly, it is dismissed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE