Union of India v. Punnakkan Narayan and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY** ## **&** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **TUESDAY, THE 16TH DAY OF JULY 2019 / 25TH ASHADHA, 1941** ## **WA.No.1502 of 2019** **AGAINST THE JUDGMENT IN WP(C) 24429/2018 OF HIGH COURT OF KERALA DATED 9.1.2019** ## **APPELLANT/1ST RESPONDENT:** **UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS/GRIH MANTRALAYA (FFR)SZ SECTION 2ND FLOOR, NDCC-II, PARLIAMENT STREET, NEW DELHI-110001** **BY ADV. SRI.JAISHANKAR V.NAIR, CGC** ## **RESPONDENT/PETITIONER & RESPONENTS 2 & 3:** - **1 PUNNAKKAN NARAYAN AGED 94 YEARS S/O.AMBU, RESIDING AT 'PUNNAKKAN HOUSE' NEAR KAPPAKKADAVU, P.O AZHIKKAL, KANNUR DISTRICT-670009** **2 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION(FFPA) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001** - **3 THE DISTRICT COLLECTOR KANNUR-670002** **R1 BY ADV. SRI.K.C.SANTHOSHKUMAR SMT. M. M. DEEPA FOR R2 & 3 BY SR.GOVERNMENT PLEADER SRI.SURIN GEORGE IPE** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**W.A.1502/2019**_ 2 J U D G M E N T ## A.K. Jayasankaran Nambiar, J The Union of India, that was the first respondent in the Writ Petition No.24429 of 2018 is the appellant herein, aggrieved by the judgment dated 9.1.2019 of the learned Single Judge in the Writ Petition. 2. The Writ Petition was filed by Sri. Punnakkan Narayan, who is stated to be 95 years old now, against the rejection by the Central Government, of his claim for pension under the Swatantrata Sainik Samman Pension Scheme (hereinafter referred to as 'the SSS Pension Scheme). The writ petition was in fact the third round of litigation before this Court, the earlier applications preferred by the writ petitioner having been rejected by the Union of India on 22.6.2015 and 30.3.2016 respectively. It would appear that, aggrieved by the rejection of his application on 30.3.2016, the petitioner approached this Court through the Writ Petition No.26063 of 2016, when by judgment dated 24.11.2017 (Ext.P1), the learned Single Judge disposed the Writ Petition with the following directions: “…................... ….................... …................... 7. I have considered the contentions advanced. It is evident from pleadings in this case that the petitioner had made an earlier application for grant of the Swatantrata Sainik Samman Pension. Petitioner contends that originals of all the documents on which reliance was placed had been submitted before the State Government. This is not disputed by the respondents. The petitioner has also produced a Non Availability of Records Certificate from the Sub Divisional Magistrate, Thalassery. It is not in dispute before me that the petitioner was a freedom fighter. He has been awarded the pension by the Kerala Government as well. It may be true that the award of the pension by the Kerala Government by itself will not _**W.A.1502/2019**_ 3 make the petitioner eligible for the award of the Swatantrata Sainik Samman Pension scheme. Further it is also not in dispute that the said pension being a recognition of the services rendered by freedom fighters for the country more than 67 years ago. The persons who consider the applications in such cases, should not take a hyper technical view of the requests made by such persons. The petitioner is before the respondents claiming an honour with which he has been endowed and is not seeking an indulgence from the Government's side. 8. In the above view of the matter and in view of the settled position of law, as regards the nature, consideration of the claim for Freedom Fighters' Pension as held by the Apex Court in decisions of Gurdial Singh Vs. Union of India Others [2001 (8) SCC 8], Union of India and Another Vs. Jai Kishun Singh (D) through L.Rs. and Others [2014 (10) SCC 352] and Sinkar Vs. State of Maharashtra and Others [2012 (11) SCC 754], I am of the opinion that the rejection of the petitioners request by the Central Government was completely vitiated by want of proper application of mind. The action of the State Government in directing the petitioner to produce the originals of the documents which he had admittedly produced along with his initial application and also requiring him to get the orders of grant of pension to his certifiers, who would in all probability have been long deceased by now, according to me, is completely misconceived. The bureaucrats both in the Central Government as well as the State Government are expected to take note of the objects behind the sanctioning of a scheme in the nature of Freedom Fighters' Pension Scheme and to pass orders in accordance with such avowed objects of the scheme. In the above view of the matter, Ext.P5 and P6 are set aside. There will be a direction to the 2[nd] respondent to immediately forward recommendation for the grant of the Swatantrata Sainik Samman Pension to the petitioner on the basis of the available documents and the admitted facts. The 2[nd] respondent shall do the needful within a period of three weeks from date of receipt of the copy of this judgment. On receipt of the recommendation as directed above, the 1[st] respondent shall take up, consider and pass orders on the request of the petitioner and the recommendation put forward by the State Government within a period of one month thereafter. Final orders shall be passed by the 1[st] respondent on the recommendation at any rate within a period of two months from date of receipt of the copy of this judgment. …................... ….................... …..............” 3. It would appear that pursuant to the directions of the learned Single Judge, the matter was once again considered by the State Government, which _**W.A.1502/2019**_ 4 proceeded to send an adverse report to the Central Government, on the basis of which the application of the petitioner was once again rejected by the Central Government by order dated 24.1.2018. Inasmuch as the judgment of the learned Single Judge had directed the State Government to issue a positive recommendation, after taking note of the difficulties faced by the petitioner in obtaining documents to substantiate his claim for Central Pension under the aforementioned Scheme, there was no scope for the State Government to sent an adverse report to the Central Government. The petitioner, therefore, approached this Court through a Contempt of Court Case alleging breach by the State Government, of the directions in Ext.P1 judgment. This Court, by its order in Contempt of Court Case, directed the State Government to make a recommendation in strict compliance with the directions in Ext.P1 judgment and accordingly the State Government made a recommendation on 9.4.2018 to the Central Government. The said recommendation was, one in favour of the writ petitioner obtaining the Pension under the the SSS Pension Scheme. The recommendation of the State Government was not, however, acted upon by the Central Government which, by Ext.P3 order dated 19.6.2018, once again rejected the application of the writ petitioner for pension. The rejection of the application by the Central was on three grounds; namely : - “................... …................... - ................... …................... - (i) the petitioner has failed to produce any acceptable and record based primary evidence duly verified by the State Government from its office records. - (ii) the petitioner in W.P.No.32008 of 2015, requested before the Hon'ble High Court for an opportunity to produce relevant documents before the State Government, which was granted by the Hon'ble Court vide judgment dated 14.12.2015. But instead of producing relevant records before the State Government, the petitioner has requested Government of Kerala to exempt him from producing records. _**W.A.1502/2019**_ 5 - (iii) For the reasons stated in the earlier communication dated 24.1.2018 of this Ministry and also found that there is an inconsistency in the recommendations of the State Government subsequent to the filing of the Contempt case against them in the matter, which is again not based on any documentary evidence. - .................. …................ .................. …..........….....” 4. It is aggrieved by the said rejection, that the writ petitioner once again approached this court through the Writ Petition No.24429 of 2018, which was allowed by the learned Single Judge through the judgment impugned in this appeal. 5. The learned Single Judge found that the appellant herein was not justified in discounting the Vyakthi Samaram, in which the petitioner had participated, from the ambit of liberation struggle, a participation in which qualified for the grant of pension under the Scheme. The learned Judge also noted that certificates that had already been produced by the Writ Petitioner before the State Government could not have been ignored by the Central Government and further, the application of the writ petitioner could not have been rejected for the sole reason that certain documents that were contemplated for eligibility under the Scheme had not been produced by the writ petitioner. The Writ Petition was accordingly allowed by setting aside the impugned order of the Central Government and a direction was issued to the appellants herein to disburse the pension to the writ petitioner, within a period of two months. 5. Before us, it is the contention of the learned counsel for the appellant Sri. Jaishankar V. Nair that the mere fact that the State Government had issued a positive recommendation in respect of the petitioner would not disentitle the Central _**W.A.1502/2019**_ 6 Government from independently considering the issue of entitlement of the petitioner to the benefit of pension under the Swatantrata Sainik Samman Pension Scheme. He relies on the judgment of the Supreme Court in the Mahender Singh v. union of India [2010 912) SCC 675] and Sainaba v. Union of India [AIR 2006 Ker.269] to substantiate the said contention. 6. Per contra, it is the submission of the learned counsel for the writ petitioner Sri. K.C. Santhosh Kumar that, by Ext.P1 judgment, this Court had specifically found that the Central Government/State Government was not justified in insisting on the production of the original documents from the petitioner, more so when it was the admitted case that the writ petitioner had produced the said documents along with the initial application before the State Government on an earlier occasion. The learned Single Judge, on that occasion, had also observed that the bureaucrats both in the Central Government as well as the State Government are expected to take note of the objects behind the sanctioning of the scheme in the nature of a Freedom Fighters' Pension Scheme and to pass orders in accordance with such avowed objects of the scheme. The learned Single Judge also referre to the decisions of the Supreme Court in Gurdial Singh v. Union of India & Others [2001(8) SCC 8], Union of India and Another Vs. Jai Kishun Singh (D) through L.Rs. and Others [2014 (10) SCC 352] and Sinkar Vs. State of Maharashtra and Others [2012 (11) SCC 754],while making the said observations. It is therefore contended that the directions of the learned Single Judge virtually obliged the State Government to issue a positive recommendation in favour of the Writ Petitioner, and when such recommendation was ultimately made, the Central Government could not go behind _**W.A.1502/2019**_ 7 the said recommendation and reject the recommendation for the same reasons as were found unacceptable by the learned Single Judge in Ext.P1 judgment. 7. On a consideration of the rival submissions, we find force in the contention of the learned counsel for the respondent writ petitioner. The sequence of events noted in the order impugned in the writ petition would itself indicate that the directions in Ext.P1 judgment, where the appellant herein was also a party, mandated that neither the State Government nor the Central Government could insist on production of documents or other materials while re-considering the case of the petitioner for pension under the Swatantrata Sainik Samman Pension Scheme. It is not in dispute that the said judgment of the learned Single Judge was not carried in appeal either by the State Government or the Central Government. Notwithstanding the said fact, when the State Government sent an adverse report in relation to the writ petitioner to the Central Government, the Writ Petitioner moved a Contempt Case before this Court and it was only thereafter that the State Government revised its earlier stand and made a positive recommendation in favour of the petitioner for grant of the Central Pension under the SSS Pension Scheme. 8. In our view, in the face of the directions in Ext.P1 judgment of the learned Single Judge, the latter recommendation by the State Government, in favour of the writ petitioner, had to be seen as the only recommendation that could have been considered by the Central Government while deciding on the entitlement of the petitioner for the pension under the SSS Pension Scheme. That apart, in the light of the binding directions in Ext.P1 judgment, which were equally binding on the _**W.A.1502/2019**_ 8 appellants herein, they could not have rejected the application of the respondent/writ petitioner on the very same grounds as were frowned upon by this Court in Ext.P1 judgment. Resultantly, we find that the directions in the impugned judgment do not warrant any interference in this appeal. We, therefore, dismiss this Writ Appeal and, considering that the writ petitioner is now 95 years old, direct the appellant to forthwith and at any rate within the outer time limit of two months from the date of receipt of a copy of this judgment, disburse to the writ petitioner the pension to which he has been found entitled. Sd/Hrishikesh Roy, Chief Justice Sd/A.K. Jayasankaran Nambiar, Judge sou.