Union of India v. K.V. Sadanandan and Vijayamamma and Additional Chief Secretary, General Administration Department, Government of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 28TH DAY OF AUGUST 2014/6TH BHADRA, 1936** ## **WA.No. 573 of 2014 ()** **--------------------------------(AGAINST THE JUDGMENT IN WPC.NO. 23644/2009 DATED 17-12-2012)** **-------------------------** ## **APPELLANT/RESPONDENT:** **----------------------------------------------** **UNION OF INDIA, REP. BY THE JOINT SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHER'S DIVISION, LOK NAYAK BHAWAN,KHAN MARKET, NEW DELHI-110 003.** **BY SRI.S.KRISHNAMOORTHY,SR, CGC** ## **RESPONDENT(S)/RESPONDENT:** **--------------------------------------------------** **1. K.V.SADANANDAN,BUNGLOW PARAMBU, CHERTHALA CANAL WARD, ALAPPUZHA, PIN-688 007 (DECEASED)** ## **2. VIJAYAMMA,** **W/O.LATE K.V.SADANANDAN BUNGLOW, PARAMBU, CHERTHALA CANAL WARD, ALAPPUZHA - 688 007.** ## ***ADDL.R3 IMPLEADED** ***R3. ADDITIONAL CHIEF SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** ***IS SUO MOTU IMPLEADED AS ADDITIONAL RESPONDENT VIDE ORDER DATED 04/07/2014.** **R2 BY ADV. SRI.K.K.SATHEESH ADDL.R3 BY SR GOVERNMENT PLEADER SRI.P.I.DAVIS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2014, THE COURT ON 28-08-2014 DELIVERED THE FOLLOWING:** **sts** ## **ASHOK BHUSHAN, Ag.CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** W.A.No.573 of 2014 ---------------------------------------- Dated this the 28[th] day of August 2014 ## **J U D G M E N T** ## Shaffique,J This appeal is filed by the respondent in the writ petition. The writ petition was filed by one Sri.K.V.Sadanandan claiming to be a freedom fighter, who participated in the Punnapra-Vayalar movement during the freedom struggle. He expired during the pendency of the writ petition and his wife is impleaded as the additional petitioner, who is the 2[nd] respondent herein. 2. The writ petition was filed seeking to quash Ext.P8 and to declare that the petitioner is entitled to get the benefit of Swatantra Sainik Samman Pension (for short 'SSS pension') in terms of the Swatantra Sainik Samman Pension Scheme, 1980 (for short 'Scheme'). The petitioner contended that he was an under trial prisoner for a period W.A.No.573/2014 2 of 10 months from 14/02/1947 to 13/12/1947 and he was thereafter convicted and had undergone rigorous imprisonment for a period of six months in C.C.No.238 of 1124 M.E by the First Class Magistrate Court, Alleppey as per judgment dated 29/12/1124 (M.E). He had undergone imprisonment and was released on 26/01/1950. According to the petitioner, Ext.P1 dated 19/03/2007 issued by the Superintendent, Central Prison, Thiruvananthapuram certifies that he had undergone the sentence of six months rigorous imprisonment in the case aforesaid. In fact, the period of imprisonment was for a period of 5 months and 10 days, by which time, he had earned remission of 20 days. Explanation (2) to Clause (4) of the scheme had given a concession by treating the period of remission upto one month as part of actual imprisonment. Punnapra-Vayalar struggle movement is considered as part of National Freedom Struggle for the purpose of grant of SSS pension with effect from 20/01/1998. Since the petitioner had W.A.No.573/2014 3 already been granted the benefit of Kerala Freedom Fighters' pension with effect from 01/04/1971, being entitled for SSS pension, he submitted Ext.P2 application dated 30/03/1998. Initially, the same was not recommended as the documents were not available. It was also indicated that the jail records of the person who certifies the co-prisoner certificate was not available. By a communication dated 26/08/2006, he was informed that the pension could not be recommended by the State Government. Subsequently, a clarification was issued by the Government stating that those who had suffered imprisonment after independence shall also be entitled for the pension. Ext.P3 is the said Government order dated 07/04/2003. On that basis, petitioner submitted a review petition to the State Government on 03/04/2007 by producing Ext.P1. Since no orders were passed, he filed W.P.C No.15612/2007 and by judgment dated 11/04/2008, this Court directed the State Government to reconsider the matter afresh. State W.A.No.573/2014 4 Government, by Ext.P7 informed the petitioner that they have forwarded the verification report duly recommending the same to Government of India. However, by Ext.P8, the petitioner was informed that his claim had been rejected by stating that his actual period of suffering was only 4 months and 10 days. Petitioner submitted further petitions as Exts.P9 and P10 to review the said order and since no action has been taken in the matter, this writ petition is filed seeking the relief sought for. 3. Counter affidavit is filed by the 1[st] respondent inter alia stating that Ext.P1 certificate was not verified by the Government and therefore the same cannot be relied upon. It is stated that the Government of Kerala, in its report dated 22/01/2009, had informed that the genuineness of the said document could not be verified. It is stated that remission could be given upto one month in respect of imprisonment, provided a valid jail certificate is produced duly verified by the State Government clearly indicating the date of W.A.No.573/2014 5 admission in the prison, date of release, facts of the case, reasons of premature release, period of remission and reasons for giving the remission. It is stated that the documents furnished by the petitioner lacks such particulars and the same cannot be accepted. 4. The learned Single Judge, after considering the rival contentions, formed an opinion that though the petitioner had suffered only 5 months and 10 days imprisonment, he is entitled for remission and therefore rejection of the petitioner's claim on that ground is illegal. Further it was found that petitioner's claim has to be considered on the basis of conviction and imprisonment and not on the basis of underground suffering. In that view of the matter, the reasons stated in Ext.P8 for rejection of claim for pension cannot be sustained. Ext.P8 was therefore quashed and respondent was directed to sanction pension with effect from the date of receipt of the application. W.A.No.573/2014 6 5. The aforesaid judgment is impugned on behalf of the Union of India inter alia contending that when the State Government has not been able to verify the genuineness of Ext.P1 certificate given by the petitioner, it is not possible for the Central Government or the State Government to grant pension. Petitioner has, in his application, claimed underground suffering for 5 months from October 1946 to February 1947, but no materials were produced. It is by virtue of a review petition that Ext.P1 was submitted which was contrary to the particulars given in the application. It is contended that the petitioner's claim of jail sufferings was not established by primary evidence and secondary evidence produced was not valid. That apart, the certificate issued as Ext.P1 could not be verified by the State Government. Hence, in the absence of particulars which are actually required for grant of pension, the direction to grant pension was erroneous. W.A.No.573/2014 7 6. Heard the learned Standing Counsel appearing for the appellant, the learned counsel for Additional 2[nd] respondent and the Learned Government Pleader. 7. In fact, while admitting this writ petition, this Court has observed that the only ground in regard to genuineness of Ext.P1 for want of official records is required to be considered. Hence the Additional Chief Secretary, General Administration Department, Government of Kerala was impleaded as an additional respondent. 8. An affidavit was filed by the Additional 3[rd] respondent stating that the petitioner produced Ext.P15 review petition before the State Government. Ext.P1 jail certificate was forwarded to the Additional Director General of Police (Prisons), Thiruvananthapuram for verifying the same who, by letter dated 10/07/2008, confirmed the genuineness of the certificate. However, it is submitted that the District Collector was unable to verify the correctness of Ext.P1 certificate on account of non-availability of the official W.A.No.573/2014 8 records. District Collector has reported that no records are available in his office and that no records in respect of PE.No.7/1122 (ME), in respect of the Punnappra Vayalar struggle and in respect of case No.238/1124. Therefore, the State Government had forwarded the verification cum entitlement report to the Government of India by recommending the claim of the petitioner as per letter dated 24/07/2008. But it was also stated in the said letter that no record was available to verify the genuineness of the certificate. 9. An affidavit is filed by the appellant in the writ appeal on 30/07/2014. In the affidavit, it is stated that there is apparent contradiction between the application submitted by the petitioner and Ext.P1. In the application, he claimed to have suffered imprisonment from 14/02/1947 13/12/1947 whereas Ext.P1 jail certificate indicates that he had undergone imprisonment from 02/01/1125 (M.E) to 26/01/1950. It is also indicated that in Ext.P1, the name and W.A.No.573/2014 9 address of the applicant is shown as at Karunagappally Taluk. Whereas the present address is at Cherthala Taluk. He had produced a certificate from Ambalappuzha Tahsildar which indicates that both Taluks were are one and the same earlier and it is after independence, Karunagapally Taluk and Chertala Taluk were established. It is contended that the certificate was issued in 2007 by Ambalappuzha Taluk office which has no validity. According to the appellant, such details are to be verified by the State Government. 10. Learned Counsel for the appellant also relied upon judgment of this Court in **Union of India v. Lennyamma** _[2012(3) KLT 852]_ . The said judgment considers the requirement of issuing Non Availability of Records Certificate by the State Government. It is held that NARC certificate issued by the State Government would be a document certifying that no primary evidence is available and therefore secondary evidence that is Personal Knowledge Certificate (PKC) in case of underground sufferings or Co- W.A.No.573/2014 10 Prisoner Certificate (CPC) in the case of imprisonment sufferings has to be taken into consideration while processing the application. It was found that NARC has to be issued by the State Government in terms of the scheme. That apart, it is found that even if the State Government recommends the entitlement for grant of pension, it is open to the Central Government to decline the same for the reasons recorded by the said authority. 11. The main contention urged by the appellant is with reference to the genuineness of Ext.P1, which, according to them, has not been confirmed by the State Government as the official records were not available. Looking at the scheme, Clause 4(a) indicates that a person, who had suffered a minimum imprisonment of six months in the mainland jails before independence, is entitled for the pension. However, it is now not in dispute that one month remission could be granted in respect of persons who had been given remission provided all the records are made W.A.No.573/2014 11 available. Clause 5 of the Scheme relates to the documents to be furnished to prove the imprisonment and other factors. Clause 5(a) indicates that in case of imprisonment, a certificate from the concerned jail authority or District Magistrate or the State Government indicating the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release is to be produced. In case, records of the relevant period are not available, a NonAvailability of Records Certificate (NARC) from the concerned authority along with two Co-Prisoners' Certificate from the freedom fighter prisoners, who had a proven jail suffering of one year is required. Petitioner claims pension on the basis of Ext.P1, a certificate issued by the Superintendent of Central Prison, Thiruvananthapuram on 19/03/2007. In the application produced by the petitioner as Ext.P2, actual period of imprisonment suffered is shown as from 14/02/1947 to 13/12/1947 as an under trial prisoner. The jail certificate is also seen produced which is dated W.A.No.573/2014 12 30/08/1973. He had also indicated that he had suffered underground sufferings for a period of five months from October 1946 to February 1947. He produced a certificate from Prominent Freedom Fighter. Therefore the application proceeded on the basis that he was an under trial prisoner. Apparently, Ext.P1 was not produced along with the application. 12. Petitioner produced Ext.P1 along with the review petition and when the same was not considered he filed W.P.C.No.15612/2007 and a direction was issued to reconsider the matter afresh in the light of Ext.P1 jail certificate. It is indicated in Ext.P8 order dated 11/02/2009 that the State Government has informed that the genuineness of Ext.P1 certificate could not be verified. Whereas he claimed to have suffered imprisonment from 14/02/1947 to 13/12/1947 for which no material, even no acceptable primary evidence, was furnished for proving underground suffering. It is also mentioned that the W.A.No.573/2014 13 petitioner has not produced any secondary evidence or valid NARC from the State Government . The certificate produced by him cannot be considered, as it does not have any supporting documents. Since the jail suffering is not established by primary evidence and no secondary evidence could be submitted, the claim cannot be accepted. The recommendation received from the State Government especially the views of Deputy Commissioner and ADGP (Prisons) are contradictory. 13. According to the Learned counsel for the 2[nd] respondent, Ext.P1 is a primary evidence to show the jail suffering. Such certificate cannot be discarded merely for the reason that the District Collector was unable to verify its genuineness on the basis of records. The certificate being genuine and recommended by the State Government, there was no reason for the Central Government to have rejected the same. But it is evident that Ext.P1 has been issued only on 19/03/2007. If the records are not available, W.A.No.573/2014 14 under what circumstances the Superintendent of Central Prison has certified that the petitioner was convicted and sentenced for six months under Section 9(5) of Act 1 of 1122 (M.E) in C.C.No.238/1124 (M.E) is not known. That apart, in the application submitted, the petitioner has not mentioned anything about Ext.P1. Only in the Review petition submitted by him as Ext.P4 on 03/04/2007 addressed to the State Government, he has mentioned about having undergone imprisonment. This matter was directed to be enquired into by judgment dated 11/04/2008 in W.P.C.No.15612/2007. In the statement filed by the additional 3[rd] respondent, it is indicated that when the State Government sought for verification report from the District Collector, Alappuzha, he had reported that no records were available in his office to verify the genuineness of the certificate. What is to be looked into is whether Ext.P1 certificate has been issued based on any records available in the Central Prison, Thiruvananthapuram. Since it is not W.A.No.573/2014 15 mentioned anywhere, either in the certificate or in the statement of 3[rd] respondent on what basis Ext.P1 certificate is issued, it may not be possible to arrive at such a conclusion. Once it is found that the certificate is based on materials available in the Central Prison, then the only question remains is whether the case C.C.No.238/1124 (M.E) and the imprisonment of the petitioner is for Punnapra Vayalar freedom struggle. 13. Learned counsel for the 2[nd] respondent would submit that Sec.9(5) of Act 1 of 1122 (M.E), the Travancore Emergency Powers Act, 1122 clearly indicates that the conviction is in respect of having committed any prejudicial act or making, printing or distributing any document containing or spreading by any other means whatsoever any prejudicial report. Prejudicial act is defined under Section 2 (i) of Act 1 of 1122. In the absence of any material to indicate the fact that the aforesaid case has arisen out of Punnapra Vayalar freedom struggle, it cannot be assumed W.A.No.573/2014 16 that the imprisonment was connected with the said freedom struggle. This is also a matter which is required to be borne in mind by the State Government while giving recommendation. In the absence of such factual data, it may not be possible for this Court to arrive at a conclusion about the genuineness of Ext.P1 and direct the grant of pension. 14. Learned counsel for the 2[nd] respondent relied upon **Gurdial Singh v. Union of India and Others** _[(2001)8 SCC 8]_ in order to contend that in appreciating the Scheme for benefit of freedom fighters, a rational and not a technical approach is required to be adopted and that 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. The matter has to be considered on the basis of probabilities and not on the touchstone of the test of beyond reasonable doubt. W.A.No.573/2014 17 15. From the materials available, two aspects are required to be considered. One is whether Ext.P1 certificate has been issued by the Superintendent of Central Prison, Thiruvananthapuram based on any material or document and if so, the particulars of the same is required to be mentioned and verified. The second is whether C.C.No.238/1124 (M.E) relates to Punnapra Vayalar freedom struggle. 16. Taking into consideration the factual matters involved in the matter, unless these factors could be verified and thereafter recommendation is issued by the State Government, the appellant will not be in a position to process the application especially in the light of contradictions in the application and the subsequent claim made by the petitioner on the basis of Ext.P1. The learned Single Judge, however, did not advert to these factual matters which are relevant to be considered before granting the pension. It is true that a certificate from the Jail W.A.No.573/2014 18 Superintendent is primary evidence as contemplated under Clause 5(a). But there is nothing in the certificate to indicate that the case relates to Punnapra Vayalar freedom struggle. Clause 5(a) states that the certificate should contain the period of sentence awarded, date of admission, date of release, facts of the case and reasons for release. By facts of the case, apparently it should contain materials to indicate that the sentence was in respect of freedom struggle, which is lacking in the certificate. Under these circumstances, we are inclined to set aside the judgment of the learned Single Judge and the appeal is disposed of as under: i) The State Government shall reconsider the matter and verify whether Ext.P1 certificate has been issued based on the materials available in the Central Prison and if so, after stating all the particulars, shall also enquire whether the case referred relates to Punnappra Vayalar freedom struggle and thereafter issue appropriate recommendation W.A.No.573/2014 19 to the appellant. The entire process shall be completed within a period of two months from the date of receipt of a copy of this judgment. ii) The appellant shall consider the recommendation of the State Government and appropriate orders shall be passed within a period of another two months from the date of receipt of the same. (sd/-) **(ASHOK BHUSHAN, ACTING CHIEF JUSTICE)** (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr W.A.No.573/2014 20 W.A.No.573/2014 21