Union of India v. K. Devaki, The State of Kerala, and The District Collector, Palakkad

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939 WA.No. 323 of 2011 IN WPC. 25066/2009 AGAINST THE ORDER/JUDGMENT IN WP(C) 25066/2009 of HIGH COURT OF KERALA DATED 18-10-2010 APPELLANT(S)/IST RESPONDENT IN WPC UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF HOME AFFAIRS, F.F.DIVISION,, LOK NAYAK BHAVAN, KHAN MARKET,, NEW DELHI - 110 003. BY ADV.SRI.S.KRISHNAMOORTHY, CGC RESPONDENT(S)/PETITIONER & 2ND RESPONDENT: 1. K.DEVAKI, W/O.LATE K.KUTTAN, AGED 77 YEARS, KUNNATH HOUSE, KANIAMPURAM P.O.,, OTTAPALAM 679 104, PALGHAT DISTRICT. 2. THE STATE OF KERALA, REP. BY PRINCIPAL SECRETARY, GENERAL ADMINISTRATION DEPT.,, TRIVANDRUM. 3. THE DISTRICT COLLECTOR, PALAKKAD. R,R1 BY ADV. SRI.N.JAMES KOSHY R BY GOVERNMENT PLEADER SMT POOJA SURENDRAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: kkj ## WA.No. 323 of 2011 IN WPC. 25066/2009 ## APPENDIX ## APPELLANTS ANNEXURES ANNEX I: TRUE COPY OF THE LETTER DATED 28.04.2011 ANNEXA: TRUE COPY OF THE REQUEST SUBMITTED BEFORE THE MINISTRY OF HOME AFFAIRS SUBMITTED BEFORE THE MINISTRY OF HOME AFFAIRS AND MINISTRY OF DEFENCE, GOVERNMENT OF INDIA ON 09.08.2012 BY THE COUNSEL FOR THE 1ST RESPONDENT. ANNEXB: TRUE COPY OF THE RECEIPT DATED 14.08.2012 AND OFFICE MEMORANDUM DATED 17.08.2012 ISSUED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI ANNEX C: TRUE COPY OF THE INFORMATION LETTER NO.56/15/RTI/2012/FF/INA DATED 14.09.2012 OF THE MINISTRY OF HOME AFFAIRS(FFR DIVISION) ISSUED TO THE COUNSEL FOR THE 1ST RESPONDENT ANNEX D: TRUE COPY OF THE COMMUNICATION DATED 01.10.2012 FROM MINISTRY OF DEFENCE, GOVERNMENT OF INDIA ANNEX E: TRUE COPY OF THE COMMUNICATION DATED 11.10.2012 FROM MINISTRY OF DEFENCE, GOVERNMENT OF INDIA ANNEX F: TRUE COPY OF THE COMMUNICATION DATED 20.10.2012 FROM THE MINISTRY OF DEFENCE, GOVERNMENT OF INDIA RESPONDENTS' ANNEXURES NIL // TRUE COPY // PA TO JUDGE : ## **K.SURENDRA MOHAN & ANNIE JOHN, JJ. --------------------------------------------W.A. No.323 of 2011 ---------------------------------------------Dated this the 5[th] day of January, 2018** ## **J U D G M E N T** ## Surendra Mohan, J. The Union of India is in appeal challenging the judgment of the learned Single Judge dated 12.08.2010 allowing W.P.(C) No.25066 of 2009. The Writ Petition was filed by the first respondent claiming pension under the Swatantrata Sainik Samman Pension Scheme (SSSP Scheme for short) of the Government of India. The learned Single Judge has allowed the Writ Petition and directed her to be granted pension with arrears from the date of her application dated 20.12.2001. Though this Writ Appeal was admitted in the year 2011, since no interim order was granted, it is submitted by the counsel for the respondent that, she has been receiving the pension from the date of the judgment appealed against. However, only 50% of the arrears have been paid to her. She is in her late 80's, old and infirm. -:2:- ## W.A. No.323 of 2011 2. The case of the first respondent is that her husband late Kuttan was a soldier in the Indian National Army (INA for short) under Nethaji Subhash Chandra Bose. He had suffered imprisonment for four months in the Changi Jail in Singapore and three months imprisonment in Bangkok. In 1993, he had filed an application for pension under the SSSP Scheme. However, the same was not considered for want of a co-prisoner's Certificate. Later on, he produced two co-prisoner's Certificates. As per exhibit P1 dated 23.06.1989, he had sought for a review of the earlier order rejecting his claim for pension. Meanwhile, he was granted pension under the Kerala Freedom Fighters Pension Scheme. In the above circumstances, he died on 08.06.1990. The first respondent thereafter submitted exhibit P4 application dated 20.12.1990 which was followed by exhibit P5 application in the prescribed form on 20.12.2001. The same was rejected by exhibit P17. 3. Since no orders were passed on the said ## -:3:- ## W.A. No.323 of 2011 application, first respondent filed W.P.(C) No.37145 of 2008 seeking appropriate reliefs. Pursuant to the judgment in the said Writ Petition, the District Collector Palakkad considered the matter and recommended the case for the grant of SSS pension. The Government of Kerala also recommended the same. However, the Government of India by exhibit P17 order dated 30.07.2009 rejected the claim of the first respondent. The claim was rejected for the reason that, the co-prisoners who had issued the Certificates on the basis of which the first respondent had claimed pension, had not suffered imprisonment for the stipulated period of one year. It was the said order that was under challenge in the Writ Petition. 4. The Writ Petition was contested by the appellant by filing a counter affidavit. It was pointed out in the counter affidavit that, as per the scheme, a claim for pension should be supported by a co-prisoner's certificate. Such co-prisoner should have suffered imprisonment for one ## -:4:- ## W.A. No.323 of 2011 or more years. In the present case, the co-prisoners had suffered imprisonments for only less than one year. Therefore, it was contended that the claim of the first respondent could not be entertained. 5. The learned Single Judge considered the respective contentions, took note of the fact that clinching evidence in respect of the events that had taken place well more than 50 years ago would be difficult to obtain and therefore held that such claim should be considered adopting a liberal approach recognizing the hard realities. According to the learned Single Judge, freedom fighters had participated in the struggle for the liberation of the country without expecting anything in return. Therefore, it was the duty of every citizen to honour such persons. The attitude of rejecting their claims on the basis of technical objections was not proper. Therefore, the learned Single Judge held that the claim of the first respondent was only to be allowed. -:5:- ## W.A. No.323 of 2011 6. According to Central Government Counsel, Sri.S.Krishnamoorthy, this is a case in which the SSS Pension scheme is applicable. Grant of pension can be only in accordance with the stipulations in the scheme. As per the scheme, it is absolutely necessary that a claim for pension is supported by documentary evidence. In the absence of any records evidencing that the claimant had suffered imprisonment, the same should be supported by a Non Availability of Records Certificate (NARC) issued by the competent authority in the prescribed form. The NARC should be accompanied by Certificates issued by two coprisoners who had suffered imprisonment for a duration of one year or more. Unless the above requirements are satisfied, no claim for pension could be granted. In the present case, it is pointed out that, though the first respondent had produced two Certificates, they were issued by co-prisoners who had not undergone imprisonment for the mandatory duration of one year or more. It is therefore ## -:6:- ## W.A. No.323 of 2011 contended that the learned Single Judge erred in allowing the Writ Petition. The learned Counsel places reliance on the decision of another Division Bench of this Court in **Union of India v. Lennyamma** [2012(3) KLT 852] particularly paragraph 62 thereof to contend that, an NARC was necessary to be produced before pension was granted. It is further contended that, even assuming that the claim of the first respondent is to be granted, such pension could be granted only from the date of the judgment and not from the date of the application. 7. Advocate James Koshy appears for the first respondent. The Government Pleader appears for respondents 2 and 3. 8. We have heard the respective counsel. We have also been taken through the judgment of the learned Single Judge, in extenso. We have considered the contentions advanced before us, anxiously. 9. It is clear from the facts on record that, the first ## -:7:- ## W.A. No.323 of 2011 respondent's husband was a member of the Indian National Army. His INA number is 19/2014/73/FF-INA (Palghat District). It is not in dispute that he had produced along with exhibit P1 Certificates issued by two of his coprisoners. Such certificates have been rejected for the reason that the prisoners who had issued the said certificates had not served prison terms in excess of one year. As rightly noticed by the learned Single Judge, the INA having been formed shortly before the independence and having been in existence for only a small duration of time, it is difficult for clinching documents to be obtained with respect to the participation of each and every person in the struggle that was carried on by the said organization. In the present case, there is evidence to show that the first respondent's husband was a member of the INA and that he had suffered imprisonment as evident from the Certificates issued by his co-prisoners. Considering the fact that the organization had been in existence only for a short period of ## -:8:- ## W.A. No.323 of 2011 time, to insist on Certificates issued by persons who had suffered imprisonment in excess of one year would only deprive the claims of many persons who are otherwise, entitled to the said benefit. 10. We are in complete agreement with the view expressed by the learned Single Judge that the freedom pension is not a bounty but an honour that is conferred by the State on persons who had voluntarily set out to take part in the freedom struggle with no expectation of anything in return. Said claims, unless found to be frivolous and totally unsupported by any evidence should be considered adopting a liberal approach. The learned Single Judge has quoted and placed reliance on the observations of the Apex Court in support of his view. We do not consider it necessary to add anything further to what has already been stated by the learned Single Judge in the judgment appealed against. 11. We further take note of the fact that, the first ## -:9:- ## W.A. No.323 of 2011 respondent's husband has expired, that the first respondent is the widow who is by now, 86 or 87 years old. She has produced sufficient documents in support of her claim. We are not satisfied that there is any infirmity in the judgment of the learned Single Judge warranting an interference therewith in appeal. We are also not satisfied that, the pension should be limited to the date of judgment of the learned Single Judge. It is only appropriate that, the pension is granted at least from the date of her application. Since we are told that only 50% of her arrears of pension have been paid so far, we direct the remaining portion of the pension also to be paid, without further delay. For the foregoing reasons, we find no merits in the appeal. The same is accordingly dismissed. There shall be a direction to the appellant to disburse to the first respondent, the arrears of pension as well as the interest that has accrued due thereon, which is remaining deposited in a Bank pursuant to the interim order dated 12.04.2001 ## -:10:- ## W.A. No.323 of 2011 passed by this Court. Such amount shall be disbursed to the first respondent as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of this judgment. **K.SURENDRA MOHAN JUDGE** **ANNIE JOHN** **JUDGE** kkj