Union of India v. Janakidas (deceased) and A.D. Joshi and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WA.No. 2935 of 2009 --------------------AGAINST JUDGMENT IN WPC : 14710/2006 DATED 08/08/07 ............... APPELLANT/IST RESPONDENT: --------------------------------- UNION OF INDIA, REP.BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-3. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENTS/PETITIONERS & 2ND RESPONDENT: -------------------------------------------------------- 1. JANAKIDAS, W/O.LATE T.V.DAS @ VARGHESE ABRAHYAM, ASSARIPARAMBIL, MUNICIPAL OFFICE WARD, ALAPPUZHA (DIED). 2. A.D.JOSHI, S/O.LATE JANAKIDAS, AGED 47, ASSARIPARAMBIL, MUNICIPAL OFFICE WARD, ALAPPUZHA. 3. STATE OF KERALA, REP.BY THE SECRETARY, GENERAL ADMINISTRATION (FFPA)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.K.K. SATHEESH R3 BY SENIOR GOVT. PLEADER, SRI. BENJAMIN PAUL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **S.R. Bannurmath, C.J. & Thottathil B. Radhakrishnan, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2935 OF 2009 AND C.M. Appl. No. 1369 OF 2009 AND I.A. No. 24 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of January, 2010 ## **JUDGMENT** ## **Thottathil B. Radhakrishnan, J.** The Union of India appeals against the judgment of the learned Single Judge declaring that the Freedom Fighters' Pension in terms of the Swatantrata Sainik Samman Pension (SSSP) Scheme, 1980 was due to the late husband of the deceased 1[st] respondent from the date on which the application for such pension was filed before the State Government. 2. Having heard learned counsel for the parties, the delay in filing the appeal is condoned. C.M. Appl.No.1369 of 2009 is allowed, accordingly. 3. The Union of India, in fact, does not dispute the fact that the person in question had suffered detention for the prescribed period in terms of the Scheme. Therefore, it is a case where direct evidence regarding such detention and WA No. 2935 of 2009 and C.M. Appl. No.1369 OF 2009 AND I.A. No. 24 OF 2010 -:2:- suffering in connection with the freedom struggle is proved. 4. The only issue that survived was superficial; as to the identity of the person, based on the name that was shown in the documents. It has been clarified beyond doubt, by the records, that the identity is well established. Therefore, the identity of the person who had undergone the detention, for which there is direct evidence, has also been established. It was therefore that, the learned Judge had granted relief applicable from the date of receipt of the application by the State Government. 5. The fundamental issue projected by the learned counsel for the appellant is that in terms of the Scheme, the applications are to be received by the State Government and therefore, the Central Government cannot be mulcted with the responsibility of paying pension from the date of such application, at least in cases where there is considerable delay in forwarding the application with report, to it. Secondly, it is pointed out that the situation in hand may fall within the law laid by the Apex Court in **Union of India vs. Kaushalaya Devi** [(2007) 9 SCC 525] WA No. 2935 of 2009 and C.M. Appl. No.1369 OF 2009 AND I.A. No. 24 OF 2010 -:3:- that if pension is allowed on the basis of secondary evidence or if the claim was not allowed on the basis of jail certificate, but on the basis of oral statement of some other detenu, the principles laid down in **Mukund Lal Bandari v. Union of India [1993 Supp(3) SCC 2]** may not apply and that if the claim is allowed on the basis of benefit of doubt, pension should be granted from the date of order and not from the date of application. 6. As already noticed, in the case in hand, the application for pension was granted by the Union of India, not based on any oral statement of some other detenu, but from the clear finding on the basis of the records, i.e. jail certificate, which showed that the person in question had suffered detention. This amounts to direct evidence. From the available records it is clear that the question of identity of the person was established to the satisfaction of the competent authority beyond any shade of doubt. Therefore, the law laid down in Kaushalaya Devi(supra) does not govern the case and hence the learned Single Judge was justified in following the decision in Mukund Lal Bandari(supra) WA No. 2935 of 2009 and C.M. Appl. No.1369 OF 2009 AND I.A. No. 24 OF 2010 -:4:- and granting the relief, i.e., ordering grant of pension from the date of the application. 7. We may notice that even among the fundamental duties of citizens, enumerated in Article 51A of the Constitution, particularly Clauses (b) and (d) thereof, every citizen of India is duty bound to cherish and follow the noble ideals which inspired our national struggle for freedom; and to defend the country and render national service when called upon to do so. We are considering the case of a person who, though now no more, had done what is cherished in Article 51A of the Constitution, long before India became free. Therefore, in fact, there is no ground even for the Union of India to show that any delay that State Government had committed in forwarding the papers should be considered against the interest of the petitioner for granting pension under the SSSP Scheme. The State Government and the Union Government are the executive limbs of the People of India as a Republican Nation and no individual citizen can be denied pensionary benefits referable to the SSSP Scheme, 1980 on any WA No. 2935 of 2009 and C.M. Appl. No.1369 OF 2009 AND I.A. No. 24 OF 2010 -:5:- ground referable to the delay by the State Government in forwarding the papers to the Union of India. If such grounds were to be accepted, in our view, that will not serve, but defeat, the purpose sought to be achieved by the Scheme in question. We are also of the view that, what is indicative as the prime concept of the requirement of providing pension under the SSSP Scheme to the freedom fighter and family members, is part of the process by which the Nation follows the noble ideals which inspired those involved in the struggle for freedom. 8. It appears that, during the course of hearing before the learned Single Judge, what was apparently required, was to consider as to whether there was any material to show that the application was received by the State Government at a given point of time, i.e., on 27.03.1998. The learned Judge had perused the original of the postal acknowledgment which the writ petitioner had placed before him at the time of hearing. For completion of the case file, we permitted the writ petitioner to bring that material on record. Thus, petitioner produced the WA No. 2935 of 2009 and C.M. Appl. No.1369 OF 2009 AND I.A. No. 24 OF 2010 -:6:- same along with IA No.24 of 2010. The said IA is allowed and the additional evidence is received on record. 9. On the aforesaid, we find no legal infirmity or jurisdictional error in the impugned judgment. 10. At this point of time, learned counsel for the appellant pointed out that, in view of the judgment the appellant may be given a short time to pay the amounts due. It is ordered that the entire amounts due under the impugned judgment be paid within three months from today. Writ Appeal is dismissed subject to the above extension of time. **S.R. Bannurmath, Chief Justice.** **Thottathil B. Radhakrishnan, Judge.** ttb13.01 WA No. 2935 of 2009 and C.M. Appl. No.1369 OF 2009 AND I.A. No. 24 OF 2010 -:7:-