Union of India v. Padmakshy W/o A.K Paraman (W.A. No. 2152/2019)

W.A. No.2152/2019 : 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. 2152 OF 2019 JUDGMENT DATED 06.08.2018 IN WP(C) 29615/2011 OF HIGH COURT OF KERALA ## APPELLANT/1ST RESPONDENT: THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS , FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAVAN, KHAN MARKET NEW DELHI 110 003. BY ADVS. P.VIJAYAKUMAR S.MANU, DEPUTY SOLICITOR GENERAL OF INDIA SRI.SUVIN R.MENON, CGC ## RESPONDENTS/PETITIONERS/RESPONDENTS 2, ADDL.R3 & R4: 1 PADMAKSHY W/O. A.K PARAMAN, PADMALAYAM, VAYALAR, KALAVAMKODAM P.O, CHERTHALA, ALAPPUZHA 688 524. 2 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, F.F P(A), SECTION, SECRETARIAT, THIRUVANANTHAPURAM P.O 695 001. 3 THE DISTRICT COLLECTOR, ALAPPUZHA PIN CODE 688 001. 4 THE SUPERINTENDENT OF POLICE, ALAPPUZHA PIN CODE 688 001. BY ADVS. R1 BY SRI.T.G.SUNIL (PRANAVAM) SRI.J.OM PRAKASH SRI.C.X.ANTONY BENEDICT SHRI.NEVIL ZACHARIA MATHEW SHRI.AKHIL SANTHOSH SHRI.K.S.VISHNU MADHAV SHRI.MEERA M. SMT.FATHIMA IBRAHIM SRI. K.P.HARISH, SR. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No.2152/2019 : 2 : ## **S. MANIKUMAR, CJ & SHAJI P. CHALY, J.** --------------------------------------------------------- W.A. No. 2152 of 2019 --------------------------------------------------------Dated this the 13[th] day of December, 2022. ## **JUDGMENT** ## SHAJI P. CHALY, J. The appeal is preferred by the first respondent in W.P.(C) No. 29615 of 2011 challenging the judgment of a learned single Judge dated 06.08.2018, whereby the writ petition was allowed and the appellant was directed to consider the claim of the first respondent/writ petitioner under the provisions of the Swatantrata Sainik Samman Pension Scheme, 1980 within one month from the date of receipt of Non Availability of Records Certificate (NARC) from the second respondent State Government. 2. Basic material facts for the disposal of the appeal are as follows: Writ petitioner is the wife of one A.K. Paraman, who was an active participant in the Punnapra-Vayalar struggle, a recognised freedom struggle. According to the writ petitioner, her husband was an accused in case No. P.E. No. 10/1122 ME (1946) before the Special Magistrate Court, Alappuzha and accordingly, he was arrested and was in the Chertha Lock up and Sub Jail, Alappuzha for 18 months from October, 1946 to April, 1948. W.A. No.2152/2019 : 3 : 3. It is also submitted that later, the State Government granted freedom fighters’ pension to her husband considering the above suffering, as is evident from Exhibit P1 order of the District Collector dated 06.01.1972. Sri. A.K. Paraman died on 14.04.1983 and thereafter, the writ petitioner is receiving state pension as his widow. It is further submitted that the Union Government on 15.08.1972 granted Thamrapathram to her husband. 4. Later, the petitioner filed Ext.P2 application dated 08.07.1998 for getting pension under the SSS scheme from the Union Government. According to the petitioner, along with the application, all relevant documents were also produced, including Exhibit P3 certificate dated 09.10.1972 issued by a veteran leader Sri. T.V. Thomas, formerly Minister of Industries of the State of Kerala. 5. The case projected by the petitioner is that an application was submitted to the District Collector, Alappuzha and a copy of the same was sent to the appellant—Union Government on 08.07.1988 by registered post. It is also pointed out that the claim of the petitioner is based on Exhibit P4 certificate dated 10.08.2005 issued by one P.A. Solomon, Ex.M.P. The petitioner has also produced Exhibit P5 certificate dated nil issued by the Tahsildar, Cherthala. However, no action was initiated and consequent to which the W.A. No.2152/2019 : 4 : petitioner had filed W.P.(C) No. 3144 of 2008 before this Court. It seems, the petitioner has later produced Exhibit P6 Non Availability of Records Certificate dated 12.02.2009 from the Special Sub Jail, Alappuzha. Anyhow, during the pendency of the writ petition, the State Government refused to recommend the application, evident from Exhibit P7 letter dated 02.08.2008. 6. It is contended that the report of the State Government is illegal and arbitrary. The State Government has also found that the certificate issued by the Ex. M.P Sri. P.A. Solomon cannot be accepted, because he is not an approved certifier, since he has suffered only 11 months imprisonment. However, the case of the petitioner is that the certificate issued by Sri. P.A Solomon was considered and accepted by this Court in the judgment in _**Lennyamma v. Union of India & ors**_ [2009(2) KHC 746]; and therefore, the Union Government cannot resile from the finding rendered in the said judgment with respect to the applicability of the certificate issued by Sri. P.A. Solomon, Ex. M.P. 7. The appellant has filed a detailed counter affidavit disputing the contentions advanced and also stating that the petitioner is not entitled to get the pension as per the SSS Pension Scheme, 1980, since she has not satisfied the requirements contained under the provisions of the scheme. It is also submitted W.A. No.2152/2019 : 5 : that the judgment of this Court in _**Lennyamma**_ (supra) is overruled by a Division Bench of this Court in _**Union of India and others v. Lennyamma and others**_ [2012 (3) KHC 341]. 8. The State Government has also filed a counter affidavit, wherein it is stated that the co-prisoner certificate of Sri. P.A. Solomon is not acceptable, since his jail suffering period is less than one year. So also, it is contended that the Non Availability of Records certificate issued by the Superintendent, Special Sub Jail, Alappuzha states that the documents pertaining to the period 1946 -1947 is not available and hence, the authenticity of the claim of the petitioner about his suffering cannot be verified. Moreover, in the report of the Tahsildar, it is stated that the petitioner’s husband was involved in P.E.10/1946, but it is not known whether he is convicted or not. 9. The learned single Judge, after considering the rival submissions, has held as follows: “4. A reading of para 4 of Ext.P-11 would disclose that the main ground of rejection is that Ext.P-4 co-prisoner certificate issued by P.A.Solomon is not acceptable inasmuch as Sri.P.A.Solomon is not an eligible certifier as per the Central Scheme as he has not suffered jail suffering for one year. It is to be noted that in Ext.P4 co-prisoner certificate it is stated that the certifier was in the same prison along with the claimant A.K.Paraman when the W.A. No.2152/2019 : 6 : latter has suffered jail imprisonment from February, 1947 to December, 1947 (11 months). As it has already found by this Court in Ext.P-9 judgment that the certifier is eligible to issue such certificate, the 2nd respondent-State Government cannot be found fault with for having acted upon Ext.P-4 coprisoner certificate. Secondly, it is stated that the stand of the State Government in the previous proceedings in Ext.P-7 and in their subsequent proceedings as per Ext.P-10 are contradictory and the State Government has recommended the case of the petitioner only in view of Ext.P-9 judgment. The third ground of rejection is that requisite NARC in the prescribed format has not been produced under the Central Scheme. 5. As regards the main ground of rejection, it has to be seen that the very same ground of rejection was challenged before this Court which culminated in Ext.P-9 judgment of this Court. Therein also the main ground of rejection was that the coprisoner certificate issued in favour of the petitioner as per Ext.P-3 by P.A.Solomon is not acceptable as the said certifier is not eligible to issue such a certificate as per the Central Scheme, since he had not suffered imprisonment for one year. True that it is clearly stated in Ext.P-4 certificate that the certififer had suffered actual imprisonment only for 11 months from February, 1947 to December, 1947. But this Court found in para 6 of Ext.P9 that it was already found in other judgment of this Court in W.A. No.2152/2019 : 7 : Lennyamma v. Union of India & ors, reported in 2009 (2) KHC 746, that P.A.Solomon is an eligible certifier to issue such certificates. The 1st respondent-Union Government is also a respondent in Ext.P-9 judgment. The 1st respondent-Union Government has not challenged the above said findings in Ext.P9 judgment by filing any review or appeal and so the said finding has become final and conclusive as between the petitioner and 1st respondent. However, it is submitted by the learned Central Government Counsel that, subsequently in other cases covered by a common judgment dated 30.5.2018 in W.P.(C).No.791/2013 and connected cases, it was held that P.A.Solomon is not an eligible certifier as the certifier, in order to eligible to issue coprisoner certificate under the Central Scheme should have necessarily suffered actual imprisonment for one year without any remission. It is also pointed out by the learned Central Government Counsel that it has also been found in para 14 of the judgment dated 11.3.2016 in W.A.No.2538/2015 [arising out of W.P.(C).No.29317/2013] that a certifier to be eligible to issue a personal Knowledge Certificate should have actually suffered one year imprisonment without any remission going by the terms and conditions of the Central Scheme. It is also pointed out by the learned Central Government Counsel that the said requirement for the eligibility of a certifier to issue Personal Knowledge Certificate would apply with equal vigour in the case W.A. No.2152/2019 : 8 : of a co-prisoner certificate also, as both certifiers require to have suffered imprisonment of the requisite period under the Central Scheme. Therefore, in the light of the above said challenge, the learned Central Government Counsel for the 1st respondentUnion Government would contend that the findings in para 6 of Ext.P-9 judgment that P.A.Solomon, Ex-MP, is not an eligible certifier, cannot be treated as one having implication of res judicata so as to bar the above said contention of the 1st respondent. 6. Having anxiously considered the rival contentions of both sides, this Court is of the view that the said findings made by this Court in para 6 of Ext.P-9 judgment has become final and conclusive and so long as the 1st respondent-Union Government, who was a party to the judgment, has not chosen to challenge those findings, they are barred by the principles importable from the doctrine of res judicata, from raising such a contention. Therefore, the main ground of rejection sited by the 1st respondent in para 4 of Ext.P-11 order is untenable and unsustainable. The second ground of rejection is that the State Government has issued contradictory orders as per Ext.P-7 and Ext.P-10 and that the respondent-State Government has issued Ext.P-10 only for the technical compliance of Ext.P-9 judgment, etc. When the respondent-State Government decided to comply with Ext.P-9 judgment, by issuing Ext.P-10 proceedings, it will W.A. No.2152/2019 : 9 : not be right and proper for the 1st respondent- Union Government, who is a statutory entity to make any criticism of the conduct of the respondent - State Government in having chosen to comply with the directions issued by this Court. Therefore, the said ground of rejection in Ext.P-11 is also not tenable and correct. The last ground sited in Ext.P-11 is that requisite NARC in the prescribed format has not been issued by the State Government along with forwardal of Ext.P-10 recommendation. 7. True that this Court in Ext.P-9 judgment had found in the earlier round of litigation that the reasons stated by the 2 nd respondent-State Government regarding the non-furnishing of NARC is not tenable. The finding in the context of the scenario that it was for the State Government to ascertain from all the appropriate subordinate officers as to the availability or otherwise of the records pertaining to the jail suffering of the petitioner, etc. This Court only held in Ext.P-9 judgment that the respondent-State Government cannot reject the case of a claim merely because the claimant has not made available the NARC from various subordinates as it is for the State Government to collect those details and to issue NARC. However, for the reasons known to the 2nd respondent, they have not chosen to comply with the formalities and to issue NARC in the prescribed format along with forwardal of Ext.P-10 recommendation. A W.A. No.2152/2019 : 10 : Division Bench of this Court in the judgment in Union of India & ors v. Lennyamma, reported in 2012 (3) KLT 852, has upheld the crucial and relevant aspects and importance of the issuance of NARC by the State Government in the prescribed format under the Central Scheme, even though it is only a technical requirement. Therefore, the last ground of rejection stated by the 1st respondent-Union Government cannot be brushed aside even though it is technical in nature. 8. The petitioner has already made available Ext.P-6 NARC dated 12.2.2009 issued by the Superintendent of Special Sub Jail, Alappuzha. The proved jail suffering of the petitioner based on Ext.P-4 is also in the Special Sub Jail, Alappuzha. Therefore, Ext.P-6 NARC has to be acted upon by the 2nd respondent as they have not raised objections as against the same. However, it is ordered that the 2nd respondent will ascertain from the 3rd respondent-District Collector, Alappuzha and the 4th respondent-Superintendent of Police, Alappuzha, as to whether any of the records pertaining to the case in which the petitioner's husband had suffered jail suffering are available with those officers. In order to save further time, it is ordered that the 3rd respondent-District Collector and 4th respondentSuperintendent of Police shall immediately ascertain from their office records as to whether any records pertaining to P.E.No.10/1122 ME (initiated in the year 1946) are available in W.A. No.2152/2019 : 11 : their office and if any such records are available they should make available requisite details in that regard to the 2nd respondent-State Government. On the other hand, if no such records are available in their office, they should issue NARC to the 2nd respondent-State Government stating about the nonavailability of records in their office. These formalities should be completed within one month from the date of receipt of a certified copy of this judgment. The petitioner will also file an application before the Chief Judicial Magistrate Court, Alappuzha, as to whether any records pertaining to P.E.No.10/1122 ME registered in the year 1946 on the file of the Special Magistrate Court, Alappuzha are available with that court and application in that regard shuld be made by the petitioner without much delay and after receipt of such application, the Chief Judicial Magistrate, Alappuzha, will inform the petitioner as to whether any such records are available or not. If such records are not available they should make available NARC. The petitioner may produce such NARC that may be issued by that court to the 2nd respondent-State Government. If it is seen that the above records in relation to P.E.No.10/1122 ME are not available with those officers, then the 2 nd respondent-State Government shall issue NARC in the prescribed format under the Central Scheme to the 1st respondentUnion Government within 2 months from the date of W.A. No.2152/2019 : 12 : production of a certified copy of this judgment. In the light of the above said findings this Court is of the view, but for the non issuance of the NARC in the prescribed format, the petitioner is eligible and entitled for the grant of freedom fighter's family dependent pension under the Central Scheme. Accordingly, the impugned Ext.P-11 proceedings on all aspects other than in respect of the NARC aspect will stand quashed. The matter relating to formal issuance of NARC alone is remitted to the 2nd respondent-State Government. On receipt of the NARC in the prescribed format from the 2nd respondent, the competent authority of the 1 st respondent shall issue orders forthwith sanctioning and granting freedom fighter's family dependent pension to the petitioner and orders in that regard should be issued within one month from the date of receipt of NARC in the prescribed format from the 2nd respondent-State Government. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.” It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, the appeal is preferred by the Union Government. 10. We have heard Sri. Suvin R. Menon, learned Central Government Counsel appearing for the appellant, Sri. T.G. Sunil for the first respondent/writ petitioner and Sri. K.P. Harish, learned W.A. No.2152/2019 : 13 : Senior Government Pleader, and perused the pleadings and materials on record. 11. The question revolves around the Pension Scheme launched by the Union Government in the year 1980, which has come into force on and with effect from 15.08.1981. The eligibility criteria contained under the scheme sofaras the imprisonment suffered by the petitioner's husband is concerned, is detailed in clause 8 of Annexure I SSS Pension Scheme, 1980, and it reads thus: “8. HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED) The applicant should furnish the documents indicated below whichever is applicable:- ## (a) IMPRISONMENT/DETENTION ETC. Certificate from the concerned jail authorities, District Magistrates or the State Government in case of non-availability of such certificates co- prisoner certificates from a sitting MP or MLA or ExMP or ex-MLA specifying the jail period (Annexure-I in the application form.) ...” 12. Clause 2 of Annexure 2, eligibility conditions and evidentiary requirements for Swatantrata Sainik Samman Pension scheme, 1980, reads thus: W.A. No.2152/2019 : 14 : ## “2. **Documents to be furnished** ## 2.1 In case of imprisonment: (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. (b) In case records of the relevant period are not available, the secondary evidences in the form of2 co-prisoner certificates (CPC) from freedom fighters who have proven jail suffering of minimum 1 year and who were with the applicant in the jail could be considered provided the State Government/Union Territory Administration concerned, after due verification of the claim and its genuineness, certifies that documentary evidences from the official records in support of the claimed sufferings were not available. In case the certifier happens to be a sitting or Ex. M.P./M.L.A., only one certificate in place of the two is required. ...” ## 13. The Union Government has dismissed the application of the petitioner as per Exhibit P11 order dated 08.09.2011 holding that she has failed to produce the primary or secondary evidence in order to avail the benefit of the scheme. It is further stated that as per the scheme, the verification and recommendation report of the State Government is mandatory, in view of the fact that the documentary evidence of the claims are in the possession of the State Governments/Union Territory Administrations and not of the W.A. No.2152/2019 : 15 : Central Government. However, as per the scheme, the Central Government has to keep all documents/reports/evidence and to take a decision strictly in accordance with the eligibility criteria and evidentiary requirements in the central scheme. 14. It is also stated that a positive recommendation of the State Government is not binding on the Central Government, if the claim does not satisfy the eligibility criteria and evidentiary requirements prescribed under the scheme. Anyhow, ultimately, it is found that the petitioner has not submitted any acceptable record of primary evidence duly verified by the State Government in support of the claim that her husband has undergone imprisonment resulting in conviction in a case. It is also stated that the State Government has not issued 'Non Availability of Records Certificate' and that the writ petitioner has failed to produce two co-prisoners" certificates, who have undergone a jail suffering of one year and are in receipt of Central pension. Therefore, it is finally concluded that the petitioner has failed to produce the relevant evidence enabling the Union Government to grant pension to the petitioner. 15. It is an admitted fact that the petitioner has not produced the certificate from a co-prisoner who is an approved certifier to certify that her husband has undergone imprisonment for a period of exceeding six months. In fact, the learned single W.A. No.2152/2019 : 16 : Judge, who considered the said question, was of the opinion that the said aspect was considered by this Court in _**Lennyamma**_ (supra) and held that P.A. Solomon, Ex. M.P is an eligible certifier to issue certificates which has become final and therefore, the contention of the Union Government that P.A. Solomon is not an eligible certifier to issue such certificates is barred by the principles of res judicata. 16. But, fact remains, the judgment in _**Lennyamma**_ (supra) was overruled by a Division Bench of this Court in _**Union of India and others v. Lennyamma and others**_ (2012 (3) KHC 341), a judgment rendered in a batch of writ appeals and writ petitions. Moreover, a learned single Judge of this Court in the judgment in _**Kaumari Kesavan v. Union of India and another**_ [W.P.(C) No. 791 of 2013 dated 30.05.2018] has held that Sri. P.A. Solomon Ex M.P is not an eligible certifier to issue certificates for the SSS pension. 17. As we have pointed out above, the State Government has clearly stated that there is no evidence at all to show that the petitioner’s husband had undergone imprisonment on account of a crime registered against him. Since the judgment in _**Lennyamma**_ (supra) was overruled, the findings rendered by the learned single Judge that the principles of res judicata would apply, thus W.A. No.2152/2019 : 17 : dissuading the Union Government to dispute that Sri. P.A. Solomon is not an eligible certifier, cannot be sustained. Moreover, as per Section 11 of Civil Procedure Code dealing with ‘res judicata’, in order to apply its principles, the issue should have been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit etc. 18. Therefore, it is clear that the technical rule contained under Section 11 of CPC would not enure to the benefit of the writ petitioner, since the earlier judgment in **Lennyamma** was by and between different parties. Further, the judgment in **Lennyamma** (supra) was overruled by a Division Bench as specified above. Moreover, in the later judgment in _**Kaumari Kesavan**_ (supra), a learned single Judge has held that Sri. P.A. Solomon is not an eligible certifier. It is also clear even from the pleadings of the petitioner itself that she has not produced any documents to satisfy the requirements of the SSS Pension Scheme, 1980, to secure pension. Moreover, the State has clearly stated in its report that there is no evidence that the petitioner's husband suffered imprisonment on account of the freedom struggle, which is different from the non availability of records. Therefore, the directions W.A. No.2152/2019 : 18 : issued for reconsideration on that ground cannot also be sustained under law. Considering the facts and circumstances and the law discussed above, we have no hesitation to hold that the appellant is entitled to succeed in the appeal. Therefore, the appeal is allowed and the judgment of the learned single Judge is set aside and consequently, the writ petition would stand dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** Rv —