Union of India v. Subhadra

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934 WA.No. 1054 of 2012 IN WPC:36025/2004 ----------------------------------------AGAINST THE JUDGMENT IN WPC.36025/2004 DATED 14/10/2011 ..................... APPELLANT/3RD RESPONDENT: ---------------------------------- UNION OF INDIA REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS FF DIVISION, LOK NAYAK BHAVAN, NEW DELHI. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2: ----------------------------------------------------------------- 1. SMT.SUBHADHRA W/O. LATE KARUNAKARAN,MANALIKKATTIL HOUSE ARAKULAM (E), KODUNGALLUR (POST), TRICHUR (DIST) - 680 664. 2. THE DISTRICT COLLECTOR, THRISSUR - 680 001. 3. THE SECRETARY TO GOVERNMENT GENERAL ADMINISTRATION DEPARTMENT GOVERNMENT OF KERALA, SECRETARIATS THIRUVANANTHAPURAM - 695 001. R1 BY ADV. SRI.RENJITH THAMPAN (SR.) SRI.V.M.KRISHNAKUMAR R2 & R3 BY GOVERNMENT PLEADER,SRI.P.I. DAVIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Manjula Chellur, Ag. C.J. & A.M. Shaffique, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1054 OF 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8[th] day of August, 2012 ## **JUDGMENT** ## **Manjula Chellur, Ag. C.J.** Heard Sri.S.Krishnamoorthy, learned Central Government Counsel and learned Government Pleader appearing for respondents 2 and 3. 2. This writ appeal arises out of a judgment in W.P. (C) No.36025 of 2004 wherein the petitioner claiming to be the wife of a freedom fighter, Mr.Karunakaran, was denied Central pension under the Swatantrata Sainik Samman Pension Scheme, 1980(for short 'SSSP Scheme'). She approached the learned Single Judge complaining that State Government did not recommend positively to sanction pension to her under the SSSP Scheme and the Central Government wrongly and erroneously rejected her application for pension. 3. The learned Judge after referring to the judgment in O.P. No.30679 of 2000 proceeded to pass the judgment and paragraph 3 of which reads as under: WA No. 1054 of 2012 -:2:- “3. It has been repeatedly held by the Supreme Court that when freedom fighters are applying for pension, it is for the State Government to verify the same. As already all the documents may not be with them, the nonavailability of records certificate issued by the Jail authorities was considered and found that the contention of the petitioner are correct and by Ext.P10 State Government recommended for the grant of Central Pension. So, after verification of the matter by the State Government and after finding that all the requirements under the Scheme have been complied with, the request may not be rejected for non-production of non-availability of records certificate. Neither it is disputed at the Bar nor there is any iota of doubt to show that th petitioner's husband was a freedom fighter.” ## 4. Aggrieved by the said judgment wherein a positive direction was not granted to the Central Government to sanction pension to the writ petitioner, the appellant is before us. Admittedly, the claim of the writ petitioner was, her husband participated in 'Quit India Movement' as he went underground between 15.02.1942 and 22.03.1944. So far as the terms and conditions or satisfaction of the Central Government to sanction the pension, the applicant is able to produce reliable documents. There is no dispute that the Scheme envisaged in 1972 got WA No. 1054 of 2012 -:3:- modified in 1980. Apparently as per the Scheme, primary evidence supporting the claim of either underground or imprisonment in connection with freedom movement has to be produced. If primary evidence is not available, secondary evidence is also acceptable as envisaged in the Scheme by providing certificate from a co-prisoner or a freedom fighter having knowledge of underground or imprisonment suffering of the claimant. But, they also have to produce Non-availability Record Certificate(for short 'NARC') substantiating the fact that the records pertaining to the case or the details in which the freedom fighter participated were not available as per enquiry made by the General Administration (FFP) Department while forwarding the verification and entitlement to pension report by the State Government. In that view of the matter, one has to see whether the applicant or the family of the applicant, in case of freedom fighter or his dependent claiming family pension, has to provide necessary information supported by documents so as to assist State machinery to forward the application with proper report and then Central Government can take a decision by WA No. 1054 of 2012 -:4:- perusing the records and report sent by the State Government. 5. It is also well settled that mere forwarding an application is not enough. The State Government(General Administration (FFP) Department) has to make enquiry and then say whether a particular applicant is entitled for sanction of the pension or not. It is also well settled that negative recommendation or positive recommendation will not be a guiding factor for the Central Government to sanction pension as the Central Government has to apply its mind independently to the facts available on record sent along with the application and then decide whether the applicant is entitled for sanction of pension in terms of the Scheme. 6. In the present case, no doubt, certificates of co-prisoners or other freedom fighters or personal knowledge certificate are sent along with the application by the freedom fighter which was pursued by his widow after his death in 2004. Unfortunately, none of these documents right from Exts.P5 to P9 would indicate that these certificates are in consonance with the requirement indicated in the Scheme of 1980 for sanctioning SSS WA No. 1054 of 2012 -:5:- pension. Some certificates indicate certifier was in imprisonment for less than one year and some certificates i.e. Personal Knowledge Certificate is issued by the prisoner indicates the underground suffering of the freedom fighter as six months which is disapproved by the Apex Court in the case of **Mahender Singh v. Union of India** [JT (2010) 10 SC 547](paragraph 8). 7. In that view of the matter, the learned Judge ought to have looked into the details of the Scheme envisaged for the purpose of SSS Pension and then would have proceeded to direct the Central Government to sanction the pension. Mere sanction of State pension will not entitle any applicant to get the Central Pension automatically. Unless and until the required terms and conditions envisaged in the Scheme are complied with, the State cannot recommend the case of the applicant and the Central Government cannot sanction pension. 8. In view of the above observations, we are compelled to set aside the judgment of the learned Single Judge in W.P.(C) No.36025 of 2004 dated 14.10.2011. However, we reserve liberty to the writ petitioner/wife of the freedom fighter WA No. 1054 of 2012 -:6:- to furnish necessary material in case she is able to secure such information and forward the same to the State Government within three months. From the date of receipt of such information, the General Administration (FFP) Department shall verify the same and do the needful as envisaged in the Scheme within two months thereafter. After receiving the application and verification and entitlement to pension report forwarded by the General Administration (FFP) Department, the Central Government shall dispose of the application in the light of the fresh material supplied by the applicant untrammelled by the earlier rejection. **Manjula Chellur, Ag. Chief Justice.** **A.M. Shaffique, Judge.** ttb/09/08 WA No. 1054 of 2012 -:7:-