Union of India v. The State of Kerala and Smt. Chellamma Palani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938** ## **RP.No. 128 of 2016 () IN WP(C).3814/2009** ## **---------------------------------------------------------** ## **AGAINST THE JUDGMENT IN WP(C) 3814/2009 of HIGH COURT OF KERALA DATED 09-07-2015** ## **----------------------------------------------** ## **REVIEW PETITIONER(S):** **-----------------------------------** **THE UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S & REHABILITATION DIVISION, 2ND FLOOR, NDCC-II BUILDING, PARLIAMENT STREET, NEW DELHI-1** ## **BY ADV. SRI.SUNNY XAVIER, CGC** ## **RESPONDENT(S):** **--------------------------** ## **1. THE STATE OF KERALA** **REPRESENTED BY THE PRINCIPLE SECRETARY, GENERAL ADMINISTRATION (FFPA) SECRETARIAT, THIRUVANANTHAPURAM 695 001** ## **2. SMT. CHELLAMMA PALANI** **DEVASWOMPARAMBU VEEDU, NEAR ST. JOSEPH'S POOMTHOTTAM LP SCHOOL, PUNNAPRA P.O, ALAP[PUZHA PIN 688 004** **R1 BY GOVERNMENT PLEADER ADV.SR.V.K.RAFEEQUE R2 BY SRI.T.R.RAJAN** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **AD** **RP.No. 128 of 2016 () IN WP(C).3814/2009 -----------------------------------------------------------** ## **APPENDIX** **PETITIONER'S EXHIBITS** **----------------------------------** **ANNEXURE A1: REVISED POLICY GUIDELINES DATED 06.08.2014.** ## **RESPONDENT'S EXHIBITS** **--------------------------------------** **NIL** **//TRUE COPY// P.A. TO JUDGE** **AD** ## **ANIL K NARENDRAN , J.** ## **---------------------------------------** ## **R.P.No.128 of 2016 in W.P.(C).No.3814 of 2009 ---------------------------------------Dated this the 30[th] day of May, 2016** ## **ORDER** This review petition is filed by the Union of India, the 2[nd] respondent in WP(C) No.3814 of 2009 seeking review of the judgment of this Court dated 09.07.2015 in that writ petition, contending that there is error apparent on the face of record, in as much as the revised policy guidelines for disbursement of the Central Samman Pension to be followed by authorised Public Sector Banks, issued by the Government of India, Ministry of Home Affairs, Freedom Fighter Division, vide letter No.F45/03/2014-FF(P) dated 06.08.2014 could not be brought to the notice of this Court during the courses of arguments. 2. I heard the arguments of the learned Central Government Counsel appearing for the petitioner, the learned Government Pleader appearing for the 1[st] respondent/State and also the learned counsel appearing _R.P.No.128 of 2016 2_ for the 2[nd] respondent/ writ petitioner. 3. The 2[nd] respondent, the widow of one Kunjan Palani who died on 15.04.1996 filed WP(C) No.3814 of 2009 seeking a writ of certiorari to quash Ext.P9 order dated 12.05.2008 of the petitioner herein and seeking a writ of mandamus commanding the petitioner herein to grant her pension under the Swatantratha Sainik Samman Pension Scheme, 1980 (hereinafter referred to as 'the SSS Pension Scheme') as sought for in Ext.P1 application dated 23.04.1998, with effect from the date of application. She has also sought for a writ of mandamus commanding the petitioner herein to pay her arrears of pension together with interest. 4. The prayer sought in the writ petition was opposed by the petitioner herein by filing a counter affidavit, which was followed by a reply affidavit filed by the 2[nd] respondent herein reiterating the contention raised in the writ petition. The 1[st] respondent State has also filed a separate counter affidavit. 5. After considering the pleadings and materials on _R.P.No.128 of 2016 3_ record this Court found that there is absolutely no grounds to sustain Ext.P9 order passed by the petitioner herein and as such the same was set aside. Accordingly the writ petition was allowed directing the petitioner herein to grant SSS Pension to the 2[nd] respondent herein based on Ext.P1 application on the strength of Ext.P2 extract issued by the Central Prison, Thiruvananthapuram and also Ext.P7 judgment of the Sessions Court, Alleppey in Crl.A.No.16 of 1950. It was also ordered that the petitioner herein shall passe necessary orders in this regard within three months from the date of receipt of the certified copy of the judgment. Paragraphs 12, 13 and 14 of the judgment read thus: _“12. From the pleadings and materials on record, it can be seen that the claim made by the petitioner for SSS Pension in Ext.P1 application is on the ground that her husband late Kunjan Palani had undergone imprisonment in Central Prison, Thiruvananthapuram for the period from 8[th] Kanni 1125 to 5[th] Kanni 1127 in connection with Punnapra-Vayalar Struggle. In order to substantiate her claim, the petitioner is relying on Ext.P2 extract of the Convict Register of Central Prison, Thiruvananthapuram and also Ext.P7 judgment of the Sessions Court of Alleppely in Crl.Appeal No.16 of_ _R.P.No.128 of 2016_ _4_ _1950. From Ext.P2 extract of Convict Register issued by the Superintendent, Central Prison, Thiruvananthapuram it can be seen that the petitioner's husband late Kunjan Palani was admitted in the Central Prison as Convict No.866 on 8[th] Kanni 1125 and he was released only on 21.5.1951 after undergoing imprisonment for a period of one year and 8 months after having obtained remission for a period of four months. A mere perusal of Ext.P2 would make it explicitly clear that late Kunjan Palani was an accused in C.C.No.280/1124 ME in Crime No.19 dated 6.2.1125 of the Division First Class Magistrate Court of Alleppey by which he was sentenced to undergo two years rigorous imprisonment. The fact that late Kunjan Palani was convicted and sentenced to undergo rigorous imprisonment for a period of two years in connection with Punnapra-Vayalar Struggle is also evident from Ext.P7 judgment of the Sessions Court of Alleppey in Cr.Appeal No.16 of 1950. A bare reading of Ext.P7 judgment of the Appellate Court make it explicitly clear that late Kunjan Palani was the second accused in C.C.No.280 of 1124 of the Division First Class Magistrate Court, Alleppey and that he was sentenced to undergo rigorous imprisonment for a period of two years, which conviction and sentence was confirmed by the Appellate Court in Ext.P7 judgment._ _13. Therefore, the fact that late Kunjan Palani was a freedom fighter who had undergone imprisonment in connection with the Punnapra-Vayalar struggle is evident from Ext.P2 extract of Convict Register certified by the Superintendent of Central Prison,_ _R.P.No.128 of 2016_ _5_ _Thiruvananthapuram and also Ext.P7 judgment of the Sessions Court, Alleppey in Crl.Appeal No.16/1950. In such circumstances, I find absolutely no justification for the stand taken by the 2[nd] respondent in Ext.P9 that the claim made by the petitioner is not supported by any primary evidence duly certified by the State Government, in order to meet the eligibility criteria and evidentiary requirement of the SSS Pension Scheme. 14. I find absolutely no ground to sustain Ext.P9 order passed by the 2[nd] respondent and the same is set aside”._ 6. Now the grievance of the petitioner is that at the time of final hearing, the revised policy guidelines for disbursement of Central Samman Pension published vide notification dated 06.08.2014, produced as Annexure-A1 along with this review petition could not be brought to the notice of this Court. Since the direction contained in the judgment dated 09.07.2015 would run contrary to the revised policy guidelines contained in Annexure-A1, the petitioner would contend that there is error apparent on the face of record and as such the judgment is liable to be reviewed. 7. In **Parsion Devi and others v. Sumitri Devi** **and others (1997 (8) SCC 715)** the Apex Court held _R.P.No.128 of 2016 6_ that, there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can be corrected by exercise of the review jurisdiction. Later, in **Lily Thomas v. Union of India (2000 (6) SCC 224)** the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.” 8. In the case on hand, the grounds raised by the learned Central Government Counsel do not make out a case for invoking the review jurisdiction of this Court. Though Annexure-A1 revised policy guidelines was never pressed into service when WP(C) No.3814/2009 was finally heard, in the interest of justice, I deem it appropriate to consider whether any interference is warranted in view of the guidelines contained therein. 9. A reading of Annexure-A1 guidelines would show that it is a revised policy guidelines to be followed by _R.P.No.128 of 2016_ _7_ authorised Public Sector Banks for disbursing the Sainik Samman Pension. The said guidelines were issued when it came to the notice of the Ministry of Home Affairs that certain discrepancies have crept in the disbursement of monetary benefits under the scheme by the Public Sector Banks. 10. The learned Central Government Counsel mainly rely on Para 1.5 of Annexure-A1 guidelines in order to contend that after the death of the freedom fighter sanctioning of dependent pension on his legal heirs is impermissible. Para 1.5 of Annexure-A1 reads thus: _1.5 Sanction of pension after the death of Freedom Fighter - No pension shall be sanctioned in the name of the freedom fighter after his/her death even if his/her matter was under examination. This also entails that no life time arrears or dependent pension shall be sanctioned to his/her spouse/daughter after the death of the freedom fighter._ 11. Reading of Para 1.5 would show that the said provision mainly concern with sanctioning of pension in the name of a freedom fighter after his or her death, even in a case in which the matter is under examination. The _8_ _R.P.No.128 of 2016_ said provision will not in any manner disentitle the dependent of a freedom fighter in making an appropriate application claiming dependent pension, which is evident from the provisions under Para 5 of Annexure-A1 which reads thus: _5. Sanctioning the dependent pension to spouse - or daughters of Freedom Fighter: Dependent pension shall be sanctioned to the spouse or unmarried daughters only if their names were appearing in the original application form submitted by the freedom fighter or the sanction letter issued by the Ministry. If the freedom fighter marries or has a daughter, either own or adopted, after the sanction of the pension, then family pension to such spouses or daughter shall not be admissible._ 12. Going by Para 5 of Annexure-A1 sanctioning of dependent pension to the spouse or daughters of the freedom fighter is permissible, if their names were appearing in the original application form submitted by the freedom fighter or sanction letter issued by the Ministry. Further Para 5.2.2 of Annexure-A1 provides that the dependent pension shall be paid from the date of application by the spouse/daughters and not from the _R.P.No.128 of 2016 9_ date of death of the pensioner, which would also make it explicitly clear that, even after the death of the freedom fighter his wife/daughters are entitled for dependent pension under the SSS pension scheme. 13. In that view of the matter, I find absolutely no merit in the contentions raised by the learned Central Government Counsel, relying on Annexure-A1 revised guidelines. In the result, the review petition fails and the same is accordingly dismissed. No order as to costs. Sd/- **ANIL K NARENDRAN, JUDGE** AD