Union of India v. C.K. Sukumaran and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 5TH DAY OF FEBRUARY 2013/16TH MAGHA 1934 ## **W.A.No.1404 of 2012** -----------------------------------------AGAINST THE JUDGMENT IN W.P.(C).4283/2012 DATED 29-03-2012. ----------------- ## **APPELLANT/** IST RESPONDENT:- ------------------------------------------------- UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, KHAN MARKET, DELHI -110 001. BY CENTRAL GOVERNMENT COUNSEL SRI.S.KRISHNAMOORTHY. ## **RESPONDENTS/** PETITIONER & RESPONDENTS 2 & 3:- ------------------------------------------------------------------------------ - 1. C.K. SUKUMARAN, S/O.KUNCHU, PULIKAL THODY VEEDU, PERATTIL, OLLUR VILLAGE CHIRAYANKIZHI, TRIVANDRUM (DIED). 2. STATE OF KERALA, REPRESENTED BY SECRETARY, GENERAL ADMINISTRATION (FREEDOM FIGHTERS PENSION-A) DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM - 695 001. 3. THE DISTRICT COLLECTOR, COLLECTOR'S OFFICE, TRIVANDRUM - 695 001. - ADDITIONAL RESPONDENTS 4 TO 7 IMPLEADED: ----------------------------------------------------------------------- ADDL.R4. C.K.SWARNAMMA, W/O.LATE C.K.SUKUMARAN, PULICKAL THODY VEEDU, PERATTIL, MOONGODE.P.O., OTTUR VILLAGE, VARKALA, CHIRAYANKIZH, TRIVANDRUM - 695 144. W.A.NO.1404 OF 2012 - 2 - ADDL.R5. S.JAGAJITH, S/O.LATE C.K.SUKUMARAN, PULICKAL THODY VEEDU, RESIDING AT VILAYIL VEEDU, THETTIKULAM, PERATTIL, MOONGODE.P.O., OTTUR VILLAGE, VARKALA, CHIRAYANKIZH, TRIVANDRUM - 695 144. ADDL.R6. S.SHEELA \, D/O.LATE C.K.SUKUMARAN & W/O.VILAYAPALAN, PULICKAL THODY VEEDU, PERATTIL, MOONGODE.P.O., OTTUR VILLAGE, VARKALA, CHIRAYANKIZH, TRIVANDRUMM - 695 144. ADDL.R7. S.SHYLAJA, D/O.LATE C.K.SUKUMARAN, PULIKKAL THODY VEEDU, NOW RESIDING AT MADAVA MANDIRAM ( MRA -120 A), PALACE ROAD, ATTINGAL.P.O., TRIVANDRUM DIST. * ADDITIONAL RESPONDENTS 4 TO 7 ARE IMPLEADED AS PER ORDER ON I.A.NO.690 OF 2012 DATED 14.1.2013. R2 & R3 BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. ADDL.R4 TO R7 BY ADV. SRI.M.P.RAMNATH. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2013, THE COURT ON 05-02-2013 DAY DELIVERED THE FOLLOWING:- Manjula Chellur, C.J. & K.Vinod Chandran, J. -------------------------------------W.A.No.1404 of 2012 -------------------------------------Dated this, the 05[th] day of February, 2013 ## JUDGMENT ## K.Vinod Chandran,J.: Definitely a hard case where the petitioner in the writ petition had been before this Court in a number of litigations in an effort to obtain Swatantrata Sainik Samman Pension (hereinafter referred to as “SSS Pension”). The petitioner, a freedom fighter, expired when the appeal was pending before this Court and we bow to the departed soul and the valiant effort he made. That apart, we are called upon to decide as to whether the petitioner in the writ petition was entitled to the SSS Pension, the grant of which was initially introduced by the Central Government during the Silver Jubilee year of Independence, with effect from 15.08.1972 and then liberalized and renamed as “Swatantrata Sainik Samman Pension Scheme, 1980” (Exhibit P8). 2. The petitioner was a recipient of Freedom Fighters' Pension granted by the State of Kerala and when, on allegedly mistaken grounds the same was withdrawn, he approached this Court and a learned Single Judge, by Exhibit P1, declared his W.A.No.1404 of 2012 - 2 - continued entitlement to such pension. Such entitlement however does not automatically confer a right for grant of SSS Pension. On the basis of the terms of the initial scheme, the petitioner had approached the Government of India for grant of pension, which was rejected by order dated 13.2.1974 (Exhibit P2). Subsequently, on the introduction of the Scheme of 1980, the petitioner made a further application, which also met the same fate at the hands of Government of India, evidenced by Exhibit P3 dated 12.2.1986. It is to be noticed that both Exhibits P2 and P3 were rejected on the ground that the State Government has not recommended the case of the petitioner and also for want of acceptable or satisfactory evidence. The petitioner did not take recourse to any further remedies against Exhibit P2 or P3. 3. Presumably on a representation dated 25.6.1998 made by the petitioner, the State Government by Exhibit P4 directed the petitioner to file a formal application with necessary documents, such as proof of abscondence/two co-prisoner certificates, jail records of the certifier, non-availability of records certificate, etc.; through the District Collector. The petitioner replied to it by Exhibit P5 and later approached this Court with O.P.No.4605 of 1999, in which though this Court noticed the rejection of his claim by Exhibits P2 and P3, W.A.No.1404 of 2012 - 3 - directed the State Government and the Union Government to consider his representations. The State Government, in purported compliance of the directions in O.P.No.4605 of 1999, forwarded the recommendation, however, without conforming to the norms and, hence, the same was rejected by the Union Government by Exhibit P7 dated 24.8.1999. 4. The petitioner, hence, was again before this Court with O.P.No.29072 of 1999. The counter affidavit filed by the Union Government along with the SSS Pension Scheme, 1980 is produced as Exhibit P8 in the present writ petition. The entire controversy would turn on the interpretation given to the terms of Exhibit P8, which we will presently come to after having stated the entire facts leading to the instant Writ Appeal. O.P.No.29072 of 1999 was disposed of, directing the petitioner to submit all details to the State Government and with a consequential direction to the State Government to verify the particulars and take follow up action (Exhibit P9). 5. The petitioner placed reliance on Exhibits P11 to P18 and P35 to substantiate his entitlement for grant of SSS Pension. However, by Exhibit P19, the claim was again rejected. Hence the petitioner approached this Court with O.P.No.32061 of 2001, where Exhibit P25 dated 20/25-9-2001 (Exhibit P20 herein) was found to be W.A.No.1404 of 2012 - 4 - not a satisfactory report by the State Government and there was a consequential direction to the State Government to forward a report within a period of three months. Correspondences were exchanged over a period of time. Government of India had also requested the State Government to forward the verification report, if any, urgently for consideration of the claim of the petitioner (Exhibit P32). Having received the said reports, by Exhibit P34 dated 21.5.2004 the Government of India rejected the claim holding that the State Government had not recommended the grant of pension for want of sufficient documentary evidences/ certificates and the Scheme contemplated a positive recommendation by the concerned State Government as being mandatory for consideration of the claim for pension. The petitioner was again before this Court in W.P.(C). No.10537 of 2005. It is very pertinent that this Court had not, in any of the judgments earlier referred to, decided on the question of eligibility of the petitioner. 6. While deciding W.P.(C).No.10537 of 2005, this Court found that the Co-prisoner Certificate issued by R.Achuthan, Ex.M.P. & Ex.M.L.A. dated 27.10.1985, which was produced along with the application for SSS Pension by the petitioner dated 23.10.1998, is a document contemplated under the Scheme and directed the 2[nd] W.A.No.1404 of 2012 - 5 - respondent to forward a recommendation on the basis of the documents Exhibits P35, P16, P17 and P18. Exhibit P35, as referred to above, is the application along with the Co-Prisoner Certificate, Exhibits P16 and P17 were the “non-availability of record” certificate and Exhibit P18 was an affidavit proving the age of the petitioner. 7. The learned counsel for additional respondents 4 to 7, the legal heirs of the deceased 1[st] respondent, would strenuously urge before us that Exhibit P36 judgment settles the issue once and for all and neither the State Government nor the Central Government could have gone into the question of eligibility of the writ petitioner; which had been decided in Exhibit P36. However, we are unable to countenance the said argument, since on a contempt being filed, the respondent/contemnor under the Union Government filed Exhibit R1 (a), copy of the letter dated 23.03.2009 by way of explanation that Annexure A1 judgment (Exhibit P36 herein) had been complied with; in so far as an order dated 23.03.2009 has been passed. The learned Single Judge also noticed in Exhibit P39 judgment, which disposed of the Contempt Case (Civil), as under: “Of course, insofar as the order has already been passed pursuant to the direction in Annexure A1 judgment, the petitioner has to certainly challenge the same appropriately”. W.A.No.1404 of 2012 - 6 - 8. That order is produced as Exhibit P41 in the present writ petition and is challenged in the writ petition, from which this appeal arises. The learned Single Judge has in the instant writ petition, raised for consideration the question as to whether the Personal Knowledge Certificate issued by R.Achuthan, Ex.M.P. and Ex.M.L.A. is an acceptable and valid certificate. The learned Single Judge found that Exhibit P38, being the recommendation of the State Government, proceeded on the basis that the certificate issued by Sri.Achuthan is genuine and the only defect pointed out was that it is not clear as to whether Sri.Achuthan was convicted in any case and it cannot be ascertained as to whether he was in receipt of SSS Pension. The learned Single Judge found that it would have been easier for the Central Government to verify such facts and hence allowed the writ petition declaring the entitlement of the petitioner for pension from 23.10.1998, the date of application, with interest at the rate of 6% per annum. Hence, we cannot outright dismiss the appeal on the finding that Exhibit P36 concluded the issue. The entitlement to receive SSS Pension under the Scheme on the basis of Exhibit P35, co-prisoner certificate is still alive to be considered. 9. Exhibit P8 sets out the salient features of SSS Pension Scheme, 1980. We specifically extract paragraph 2.2 relating to W.A.No.1404 of 2012 - 7 - “imprisonment”, the essential condition for grant of pension, which decides the eligibility: **“2.2. Imprisonment:-** A person who had suffered minimum imprisonment of six months (3 months in case of women, SC/ST freedom fighters) on account of participation in freedom struggle subject to furnishing of the following evidences: (a) Imprisonment/detention certificate from the concerned jail authority, District Magistrate or the State Govt. indicating the period of sentence awarded; date of admission, date of release, facts of the case and reasons for release. OR (b) In case records of the relevant period are not available, a non-availability of records certificate (NARC) from the concerned State/Union Territory Administration along with 2 co-prisoner certificates (CP) from freedom fighters who have proven jail sufferings of minimum 1 year and who were with the applicant in the jail. In case the certifier happens to be a sitting or Ex.M.P./M.LA., only one certificate in place of the two is required”. 10. Looking at the above, it is evident that only a person who had suffered an imprisonment for a period of six months would be eligible for pension under the Scheme, subject, however to, furnishing of evidence listed thereunder. We are not concerned with paragraph 2.2(a), since that refers to the primary evidence, which admittedly is not available in this case. As far as secondary evidence W.A.No.1404 of 2012 - 8 - is concerned, paragraph 2.2(b) speaks of a **'** non-availability of records **'** certificate issued by the State along with 2 co-prisoner certificates from freedom fighters who have **proven jail sufferings of minimum one year** . It also provides that in the event of a certificate by an Ex.M.P./Ex.M.L.A., the certificate of one such person would suffice. There is no controversy with respect to **'** non-availability of records certificate **'** that has been produced, as is evident from Exhibit P41. The rejection of the claim of the petitioner was only on account of the co-prisoner certificate issued by the co-prisoner R.Achuthan, Ex.M.P. and Ex.M.L.A. not being acceptable as the same had not been verified by the State Government. 11. Exhibit P38, the report of the State Government, specifically refers to co-prisoner certificate issued by R.Achuthan and states that despite the claim of the certifier that he had suffered imprisonment during the freedom struggle, there was nothing on record to show whether he was convicted in any case or he was in receipt of SSS Pension. To understand whether the authenticity of a certificate issued by an Ex.M.P./Ex.M.L.A. can be gone into by the State Government or Union Government, we have to look at the provisions of paragraph 2.2 of the Scheme. The secondary evidence applicable is the non-availability of records certificate from the State W.A.No.1404 of 2012 - 9 - concerned and 2 co-prisoner certificate from freedom fighters who have **proven** jail sufferings of minimum 1 year. The proof of jail sufferings of a certifier does not call for admission of any secondary evidence. The deeming provision only says that if such certifier, having **proven** jail sufferings of minimum 1 year, is a sitting or Ex.M.P./Ex.M.L.A., only one certificate in place of two is required. So, even if the certifier is an Ex.M.P. or Ex.M.L.A., his jail sufferings are to be **proven** and we are unable to hold that such proof has to be ferreted out by the State Government or the Union Government. 12. We are also of the opinion that the delay caused in the matter too assumes significance. The original claim was rejected in 1974 and the claim made under the liberalized scheme of 1980 was also rejected in 1986. The petitioner waited till 1998 to make a further application. True, this Court had time and again directed consideration of the petitioner's representations. But the entitlement as such was argued and decided only now. The delay in challenging the order of 1974 and then of 1986 would also have contributed to the non-availability of records. 13. The learned counsel for the petitioner then would refer to Exhibits P11 to P18. Exhibits P11 to P13 merely refers to the knowledge, of the certifiers therein, of the petitioner having W.A.No.1404 of 2012 - 10 - participated in the freedom struggle and having been taken into custody by the police. They are not co-prisoners, which is mandatory under the Scheme. Exhibit P14 is again by an Ex.M.L.A. and who, even as per the certificate, has suffered imprisonment only during a period of two months, i.e. between 8.7.1947 and 20.8.1947. Exhibit P15 though shows the certifier in Exhibit P14 to be an accused in the charge-sheet, no reliance can be placed on Exhibits P14 and P15, since the Scheme specifically speaks of the certificate of a person who has proven sufferings of minimum one year. Exhibit P16 is a reply by the Sub Inspector of Police, Attingal regarding the non-availability of records in respect of freedom fighters in the police lock up during the period asked for. Exhibit P17 is an application made by the petitioner before the Chief Judicial Magistrate, Thiruvananthapuram for obtaining jail record certificate or non-availability of records certificate with respect to himself as also his certifier Sri.R.Achuthan during the period he was under police lock up. Both Exhibits P16 and P17 concedes the absence of records; but, as noticed above, since the proof of imprisonment of the certifier does not admit of secondary evidence, that cannot be relied upon. 14. We are conscious of the fact that the Hon'ble Supreme Court in _**Mukund Lal Bhandarai v. Union of India,**_ **1993** W.A.No.1404 of 2012 - 11 - **Supp (3) SCC 2,** taking into consideration the fact that the participants of the freedom struggle would be scattered all over the country and in many cases the widows and unmarried daughters would be preferring claims under the Scheme, held that it ill behoves the Government to raise pleas of limitation against such claims, if there is a genuine desire to assist and honour those who had given the best part of their life for the country. It was also exhorted that the Government in fact should find out the freedom fighters or their dependants and approach them with the pension, which would be the true spirit of working out such Schemes. The spirit of such Scheme being to assist and honour the needy and acknowledge the valuable sacrifices made, the Supreme Court also cautioned against converting it into some kind of programme of compensation. Hence, though in the said decision the eligibility for the benefit of the Scheme was made available irrespective of the date on which the application is made; it was held to be not advisable to extend such benefit retrospectively. In the said case what came up for consideration were the claims/applications made after the date prescribed in that behalf and the contention of limitation raised by the Government to resist such claims. It was categorically held that neither the date of application nor the date on which the required proof is furnished W.A.No.1404 of 2012 - 12 - would make any difference to the entitlement of the benefit under the Scheme (para 8). However, before coming into the said conclusion, it was also held: “What is necessary in matters of such claims is to ascertain the factum of the eligibility (sic) (para 8). 15. The necessity to ascertain the factum of eligibility, hence, cannot but be over emphasized. It is not the limitation or the date of application that assumes significance in the instant case. The petitioner had, in fact, made applications at the proper time, which was twice rejected, against which no proceedings were taken in time. The pursuit made from 1998 onwards cannot be negatived on question of limitation especially since, as noticed above, this Court had permitted the petitioner to move representations. But, however, that is not to say that the question of eligibility has to be shunted to the background only on account of the multiplicity of proceedings to which the petitioner subjected himself. 16. The reliability of secondary evidence has been dealt in paragraph 4.15 of the Scheme, which is extracted hereunder: **“4.15 Reliability of secondary evidence:-** The Scheme specifies the nature of primary evidences which are to be furnished by the applicants for the pension. In absence of W.A.No.1404 of 2012 - 13 - primary evidences, applicants are allowed to furnish secondary evidences. However, secondary evidence should be reliable enough to induce a reasonable belief that the applicant fulfilled the conditions of the Scheme. Cautioning the authorities in the matter of reliance on secondary evidence, Hon'ble High Court of Karnataka vide judgement dated 19[th] March, 1997 in W.P.No.35193/96 in Siddappa Shivalingappa Vs. Union of India has held - “In my opinion such certificates cannot be taken to be always genuine & conclusive proof for granting pension under the pension scheme. Further, it cannot be denied that such certificates can be obtained without much efforts”. 17. This would amply demonstrate that the secondary evidence produced by a claimant is to be examined by the appropriate authority and it is perfectly within the powers of such authority to decide on the reliability of such evidence as to the proof of imprisonment. A Division Bench of this Court in W.A.No.314 of 2011 and connected cases, vide judgment dated 22.06.2012, has categorically reiterated the position that even if the State Government positively recommends the case of an applicant, it is ultimately the authority under the Union Government considering the application; who, has to decide on the eligibility or otherwise. Here is a case where the State Government itself did not authenticate the W.A.No.1404 of 2012 - 14 - co-prisoner certificate issued by an Ex-M.P./Ex.M.L.A. We are unable to see any laxity on the part of the State Government, since apparently no records were available on the showing of the petitioner himself. The terms of the Scheme having not provided for acceptance of the co-prisoner certificate of an Ex.M.P./Ex.M.L.A.; without anything further; we cannot find otherwise, especially in the context of the Scheme providing for the certifier to have **“proven jail sufferings of minimum 1 year”.** In the circumstances stated above, we are unable to sustain the impugned judgment on the terms of the Scheme. We set aside the same and allow the Writ Appeal, leaving the parties to suffer their respective costs. Sd/Manjula Chellur, Chief Justice ## Sd/- vku/ K.Vinod Chandran, Judge. ( true copy )