W.A. Nos. 122/2019 & 1691/2019 (Union of India v. Sarojini Damodaran; Union of India v. N. Rajamma Haridas)

W.As. 122/2019 & 1691/2019 -: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 THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944 WA NO. 122 OF 2019 [AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 9.7.2018 IN WP(C) NO.2470/2014] ## APPELLANT/1ST RESPONDENT: UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, (FFR DIVISION), 2ND FLOOR, NDCC-2 BUILDING, PARLIAMENT STREET, NEW DELHI-110003. BY ADV. SRI.JAISHANKAR V. NAIR, CGC ## RESPONDENTS/WRIT PETITIONER: - 1 SAROJINI DAMODARAN, W/O. LATE V. S. DAMODARAN, ASRALAYAM, MANNANCHERRY P.O., ALAPPUZHA-688538. - 2 ADDL.R2: A. D. BAIJU, S/O. SAROJINI DAMODARAN, AGED 63, ASRALAYAM, MANNANCHERRY P.O., ALAPPUZHA-688538. - 3 ADDL.R3. UDAYAKUMARI, W/O. DATE KERALEEYAN, AGED 55, JAIMARUTHI, MANNANCHERRY P.O., ALAPPUZHA-688538. ADDLTIONAL RESPONDENTS 2 AND 3 ARE IMPLEADED AS PER ORDER DATED 25.08.2022 IN I.A. NO.1 OF 2022. BY ADVS. SRI. K. K. SATHEESH (B/O) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH W.A. NO.1691/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.As. 122/2019 & 1691/2019 -:2:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944 WA NO. 1691 OF 2019 [AGAINST THE JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 29.11.2018 IN WP(C) NO.36191/2018] ## APPELLANT/1ST RESPONDENT IN WP(C): UNION OF INDIA, REPRESENTED BY THE DEPUTY SECRETARY TO THE GOVT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, 2ND FLOOR, 'A' WING, JAISING ROAD, NEAR YMC, NEW DELHI-110001. BY ADV. JAISHANKAR V. NAIR ## RESPONDENTS/WRIT PETITIONER AND 2ND RESPONDENT IN WP(C): - 1 N. RAJAMMA HARIDAS W/O. LATE BAVA HARIDAS, BANGALOWPARAMBU, ARRATTUVAZHY WARD, ALAPPUZHA-688 007. 2 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVT, GENERAL ADMINISTRATION (F.F.P.A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADV. SRI. K. K. SATHISH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2022, ALONG WITH W.A. NO.122/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.As. 122/2019 & 1691/2019 -:3:- ## **JUDGMENT** ## **S. MANIKUMAR, CJ** Instant writ appeals are filed by the Union of India, represented by Deputy Secretary to the Government, Ministry of Home Affairs, Freedom Fighter's Division, New Delhi, respondent in the writ petitions, challenging the judgments passed in W.P.(C) No.2470/2014 dated 9.2.2018 and W.P. (C) No.36191/2018 dated 29.11.2018 respectively. Since the writ petitions are of a similar nature, on agreement, we heard them together. 2. By the impugned judgments, learned single Judge directed the appellant to grant Swatantrata Sainik Samman Pension (freedom fighter's pension), to the respective petitioners along with arrears thereon, within a time frame. 3. Relevant portions of the judgment impugned in W.A. No.122/2019 ## are extracted hereunder: “13. These claimants have been pursuing the matter for quite a long time and claimants have participated in the Punnapra Vayalar movement that took place in October, 1946. Long years have elapsed after the said historic event. Therefore, this Court is fully inclined to accept the reasoning rendered by this Court in the judgment dated 30.5.2018 in W.P.(C).No. 14070/2013 and would follow the said directions, which had allowed the claim on merits. It should also be borne in mind that the present generation is able to enjoy the oxygen of freedom and liberty only because of the sufferings of the freedom fighters, who took part in the historical W.As. 122/2019 & 1691/2019 -:4:- struggle for making India free from colonial rule. Therefore, this Court is of the considered view that again making a remit would be unjust and would unnecessarily prolong the matter. Therefore, going by the reasonings and the line of directions issued by this Court in W.P.(C).No. 10470/2013, it is ordered that the respective impugned orders in these three cases issued by the respondent Union Government authorities will stand set aside. It is further ordered and declared that the petitioners/ claimants concerned herein in these 3 cases are entitled for grant of Central SSS Pension in accordance with the Central scheme. The petitioner will be entitled for grant of pension and its arrears from the respective dates of issuance of the present rejection orders passed by the respondent Union Government, which have now been quashed. So the petitioners in W.P.(C).No.19452/2013, W.P. (C).No.13863/ 2013 and W.P.(C).No. 2470/ 2014 will be entitled for grant of freedom fighters' pension and its arrears from 25.6.2013, 11.2.2013 and 15.1.2014 respectively. The pension and arrears of pension should be released to the respective petitioners concerned in these three cases within three months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petitions (Civil) stand finally disposed of.” ## 4. Relevant portions of the judgment impugned in W.A. No.1691/2019 are extracted hereunder: “12. In order to ensure that any such technical lacuna is rectified it is ordered in the interest of justice that the competent authority among 2[nd] respondent State Government will forthwith issue a letter to the 1st respondent Union Government stating that in view of the above said judgments of this Court in Ext.P-15 W.P.(C).No. 12038/2008, W.A.No. 829/2013, Ext.P-14 W.P.(C).No. 2692/2013 as well as the directions in this judgment that the C.C.No. 238/1124 ME on the file of the Divisional First Class Magistrate Court, Alappuzha in which the petitioner's husband was convicted under Sec. 9(5) of the Travancore Emergency Powers Act, 1122 ME is one in relation to W.As. 122/2019 & 1691/2019 -:5:- Punnapra-Vayalar movement and also further reiterating the verification and recommendation in favour of the petitioner as in Ext.P-8 and verification-cum-entitlement report is given in the necessary proforma as per the Central scheme. Communication in this regard should be issued by the 2[nd] respondent addressed to the 1[st] respondent Union Government within a period of 3 weeks from the date of production of a certified copy of this judgment. 13. It is further ordered that the impugned objection order at Ext.P-13 proceedings dated 11.10.2018 will stand quashed. Consequently, it is ordered that the 1[st] respondent Union Government will immediately pass orders sanctioning freedom fighter's dependent pension to the petitioner under the Central scheme, in view of the conclusive finding made by the 2[nd] respondent State Government in Ext.P-8 letter that Ext.P-1 convict register is a primary evidentiary material, which is genuine, the petitioner is entitled to not only for the sanction of the pensionary benefits, but also with arrears from the date of submission of application as per Ext.P-7 dated 7.12.2013. This conclusion is reached by this Court on the basis of the dictum laid down by the Apex Court in **UOI & Anr. v. Kaushalya Devi** , reported in (2007) 9 SCC 525, where the claimant produces only acceptable secondary evidentiary materials, then he is entitled for grant of the benefits under the Central scheme only prospectively from the date of the sanction order. But that where the claim is sanctioned on the basis of the primary evidentiary materials, then the claimant is entitled for sanction of freedom fighter's pension under the Central scheme from the date of submission of the application along with the evidentiary materials. In the instant case, it is beyond doubt that the petitioner had submitted Ext.P-7 application on 7.12.2013. Accordingly, it is ordered that the 1[st] respondent Union Government will immediately pass orders sanctioning freedom fighter's dependent pension to the petitioner along with arrears thereon w.e.f. 7.12.2013 and will disburse the pensionary benefits, along with the said arrears to the petitioner without much delay, within a period of 2 months from the date of receipt of communication from the 2[nd] respondent State Government as directed herein above. The petitioner shall produce certified copies of this W.As. 122/2019 & 1691/2019 -:6:- judgment before respondents 1 and 2 for information and necessary action. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.” 5. W.P.(C) No.2470/2014, leading to W.A.No.122/2019 has been filed by the 1[st] respondent seeking the following reliefs: - “i) declare that the petitioner is entitled to get the benefit of “Swatantrata Sainik Samman Pension” (SSS Pension) due to her late husband. - ii) call for the records leading to the issue of Exhibit P-9 and quash its original by the issuance of a writ of certiorari. - iii) Issue a writ of mandamus or other appropriate writ, direction or order, compelling the respondent to grant the benefit of SSS Pension to the petitioner with the actual arrears due to her within a stipulated time. - iv) Issue any other appropriate writ, direction or order as this Hon'ble Court deems fit and proper in the nature and circumstances of the case.” 6. W.P.(C) No. 36191/2018, leading to W.A.No.1691/2019 was filed by the petitioner/1[st] respondent herein seeking the following reliefs: - (i) declare that the petitioner is entitled to get the benefit of “Swatantrata Sainik Samman Pension” (SSS Pension) due to her late husband; - (ii) call for the records leading to the issue of Ext.P13 letter No.52/CC/K/158/2009-FF(SZ) dated 11.10.2018 issued by the 1[st] respondent - Union of India, and quash its original by issuance of a writ of certiorari; - (iii) Issue a writ of mandamus or other appropriate writ, direction or order, compelling the 1[st] respondent to grant the benefit of dependent family pension under the SSS Pension Scheme to the petitioner on the basis of Ext-P8 recommendation report made by the 2[nd] respondent – State W.As. 122/2019 & 1691/2019 -:7:- of Kerala, with the actual arrears due to her from the date of Ext-P7 application dated 7.12.2013, within a stipulated time. 7. W.P.(C) No.2470/2014 has been instituted by the writ petitioner seeking for a direction to grant her Swatantrata Sainik Samman Pension. By the impugned judgment, writ court directed the appellant/respondent – Union of India, to grant SSS pension to the writ petitioners, which according to the appellant, is without properly considering the provisions of Swatantrata Sainik Samman Pension Scheme, 1980 (SSS Scheme) and without properly appreciating the evidence on record. 8. Brief facts leading to the filing of the writ petitions are that; spouses of the writ petitioners participated in Punnapra-Vayalar movement during the freedom struggle and due to the participation, warrants of arrest were issued against them by the learned Special Magistrate, Alappuzha, in Case No. PE 7/1122 ME. In order to evade arrest, the spouses of the claimants had gone underground for a period of six months from 7.3.1122 ME to 11.12.1122 ME and as such, they are entitled to get the benefit of SSS Pension. 9. It is the case of the petitioner in W.P.(C) No.2470/2014 that her husband was awarded Kerala Freedom Fighters’ Pension, on account of such participation, as per proceedings of the District Collector, Alappuzha dated 20.12.2000. Pursuant to the recognition of Punnapara-Vayalar W.As. 122/2019 & 1691/2019 -:8:- movement as a part of National Freedom Struggle, for the purpose of grant of SSS Pension, with effect from 20.01.1998, her husband has made an application dated 15.03.2002 for grant of SSS Pension. Along with the application, he had produced Personal Knowledge Certificates (PKCs) issued by Mr.Narayan Ramankutty and Mr.H.K.Chakrapani, prominent freedom fighters, who had undergone imprisonment in the Central Prison, Trivandrum, for a period of 5 years, and the recipient of SSS Pension sanctioned by the appellant; and also Non-availability of Record Certificates (NARC) from the Chief Judicial Magistrate Court, Alappuzha. That apart, writ petitioner has also produced a copy of jail extracts and order of sanction of SSS Pension, in respect of the said certifiers. 10. Writ petitioner has further stated that her husband expired on 13.08.2005. Since the State Government did not recommend her claim for SSS Pension, writ petitioner filed W.P.(C) No.9954/2007, which was disposed of vide judgment dated 01.12.2008, with the following directions: “...........The State Government will forward a proper verification-cum-entitlement report with appropriate recommendation after considering the personal knowledge certificates produced from Sri. Naryanan Ramankutty and Sri. H. K. Chakrapani along with the certificates produced in respect of the certifiers and other materials available. The same shall be done within a period of two months from the date of receipt of the copy of this judgment. On receipt of the said report, the first respondent shall pass orders within a further period of three months thereafter. In the event of W.As. 122/2019 & 1691/2019 -:9:- sanction of pension, the claim for arrears from the date of receipt of the application shall also be considered.” 11. Pursuant to the above, although the District Collector, Alappuzha, vide letter dated 19.01.2009, has duly recommended the writ petitioner's claim for SSS pension, the State Government vide letter dated 28.02.2009, did not recommend the same on the ground that she had not produced a valid Non-availability of Records Certificate (NARC), as required under the SSS Pension guidelines. After that, the appellant rejected her claim vide letter dated 16.04.2009, in the absence of valid NARC and recommendation from the State Government. 12. Being aggrieved, writ petitioner again approached this Court by filing W.P(C) No.18990/2010, which was disposed of as per judgment dated 13.02.2012. In compliance of the said judgment, the State Government issued recommendation and NARC in favour of the writ petitioner. However, the appellant rejected the claim, vide letter dated 15.01.2014 assigning the following reasons: - (i) Because the writ petitioner has not produced any valid primary evidence in support of her case. - (ii) Because the NARC issued by the appellant is not based on actual enquiry, rather it is based on the PKC of the certifiers which is absurd and not acceptable. - (iii) Because both the certifiers H.K.Chakrapani and Narayan Ramankutty have been abusing their position and have been indiscriminately issuing the certificates. W.As. 122/2019 & 1691/2019 -:10:- - (iv) No reason has been specified by the State Government, in support of their recommendation in favour of the writ petitioner/respondent. 13. It was in the above circumstances, W.P.(C) No.2470/2014 has been filed by the respondent/writ petitioner, for the reliefs stated supra. 14. According to the appellant, similar is the fact situation as regards W.P.(C) No.36191/2018. 15. Petitioner in W.P.(C) No.36191/2018 approached this Court earlier by filing W.P.(C) No.10978/2006, which was disposed of with a direction to the appellant, to pass appropriate orders on the basis of State Government’s report. Further, the State Government has forwarded a report, wherein the claim of the writ petitioner was not recommended. In compliance to the judgment dated 8.4.2009 passed in the said writ petition, claim of the writ petitioner has been considered by the Ministry and on the basis of the State Government’s report, her claim was rejected vide order dated 01.09.2009, for the reason that the claim is devoid of merit under the provisions of SSS Scheme. 16. Being aggrieved, the writ petitioner again filed W.P.(C) No.33476/2009, which was also disposed of by judgment dated 29.06.2012, with a direction to consider the case afresh, after going through the material placed before them. Accordingly, the claim of the W.As. 122/2019 & 1691/2019 -:11:- petitioner in W.P.(C) No.36191/2018 was re-examined by the appellate authority and was again rejected vide order dated 30.04.2014. 17. Thereafter, the petitioner in W.P.(C) No.36191/2018 filed another W.P.(C) No.10045/2014, praying for a declaration that she is entitled for SSS dependent pension, which was also disposed of by the writ court vide judgment dated 30.05.2018, with a direction to the State Government to forward the details sought by the appellant and on receipt of the required details from the State Government, the appellant shall take appropriate decision on the claim of he writ petitioner. However, her claim was again rejected vide letter dated 1.10.2018 due to the following reasons: - i) Case No.238/1124 ME on which the claim of the writ petitioner was based, is not seen in the list of Punnapra Vayalar Struggle. - ii) The State Government vide their letter dated 16.08.2018 has simply forwarded a copy of their earlier letter dated 17.03.2015, without endorsing specific recommendation. - iii) As per the Scheme, verification and recommendation report of the State Government is mandatory, in view of the fact that the documentary evidence of the claims are in possession of the State Territory Administration and not of the Central Government. In this case, the State Government has not recommended the claim of the petitioner. 18. Aggrieved by the rejection letter dated 11.10.2018 of the appellant, the 1[st] respondent herein has filed W.P.(C) No.36191/2018 for the reliefs stated supra. W.As. 122/2019 & 1691/2019 -:12:- 19. Learned single Judge, after considering the rival contentions raised by both the parties, disposed of the subject writ petitions directing the appellant – Union of India, to grant SSS pension to the respective writ petitioners/respondents herein, as extracted above. 20. Being aggrieved, instant writ appeals are filed basically contending that the writ court ignored the vires of the scheme; objections of the appellant; eligibility criteria; and requisite evidence, as provided under the SSS Pension Scheme, and has passed the impugned judgments, which are liable to be set aside. Writ court failed to consider the fact that as per the scheme, verification and recommendation report of the State Government is mandatory in view of the fact that the documentary evidence of the claims are in possession of the State Territory Administration and not of the Central Government. In the case of the respondent in W.A. No.1691/2019, State Government has not recommended the claim. They have only forwarded a copy of their earlier letter dated 17.03.2013, without endorsing any specific recommendation. 21. It was further contended that the the writ court failed to consider the legal and factual issues in the matter and passed the impugned judgments irrespective of the fact that the Case No.238/1124 ME on which W.As. 122/2019 & 1691/2019 -:13:- the claim of the respondents/writ petitioners is completely based, was not seen in the list of Punnapra-Vayalar struggle provided by the State Government. That apart, writ court has not considered that Swatantrata Sainik Samman Yojana is a document based Scheme and the documents required for eligibility for Samman Pension, as mentioned in the Scheme, are to be produced by the applicant in support of the claim, duly verified and recommended by the concerned State Government. 22. Appellant has further contended that they have passed reasoned and speaking orders for rejection of the writ petitioners' claim. Writ court failed to consider the fact that there are numerous discrepancies in the applications of the writ petitioners/respondent herein, which were pointed out by the State Government. Despite the discrepancies, the State Government, merely to comply with the order of the learned single Judge, granted recommendation in favour of the respondents, which according to the appellant, is not a proper recommendation. 23. Learned single Judge has wrongly held that there was no possibility of bringing primary evidence in the underground suffering's case. For the claim of underground suffering, the Scheme itself provides documentary evidence by way of Court's/Government's order proclaiming the applicant as an absconder, announcing an award on his or for his W.As. 122/2019 & 1691/2019 -:14:- arrest or ordering his detention. Where records of the relevant period are not available, an Non-availability of Records Certificate (NARC) from the concerned State Government along with a Personal Knowledge Certificate from a prominent freedom fighter, who has proven jail suffering of minimum two years and who happened to be from the same administrative unit, is required. 24. Appellant has further contended that the writ court ought to have understood that merely making an application in the format, the person does not become entitled to grant of SSS Pension. The person/claimant has to satisfy the criteria as laid down in the Scheme and it is up to the discretion of the Central Government whether to grant the pension or not. Appellant has also contended that no irrefutable evidence was brought on record by the claimants/respondents and hence, it was up to the Central Government to judge the veracity of the evidence. 25. Appellant has also contended that State Government has not disclosed in their recommendation, as to what all agencies were approached by it for verifying the case of the respondents and which all agencies had declared that the records of the case were not available. The recommendation merely states that they declare that the records are not available with all the agencies. Such a recommendation and verification W.As. 122/2019 & 1691/2019 -:15:- report, according to the appellant, is not acceptable. In support of the submission, appellant has relied on the decisions of the Hon'ble Apex Court in **Mahender Singh v. Union of India** [(2010) 12 SCC 675] and of a Hon'ble Division Bench of this court in **Union of India v. Thaliyil Sreedevi Amma and Others** [ILR 2016 (1) Ker. 181]. 26. Heard Mr. Jaishankar V. Nair, learned Central Government Counsel for the appellant and Mr. K.K.Sathish, learned counsel for the respondents/writ petitioners, and perused the material on record. 27. Relevant portions of the Swatantrata Sainik Samman Pension Scheme, 1980, formerly known as Freedom Fighters' Pension Scheme, 1972, read as under: ## “INTRODUCTION During the Twenty-fifth anniversary (Silver Jubilee year) of Independence a Central Scheme for the grant of pension to freedom fighters and their families from Central Revenues was introduced by the Government of India. The Scheme commenced from 15[th] August, 1972 and provided for the grant of pension to living freedom fighters and their families; if they are no more alive, and to the families of martyrs. The minimum quantum of pension sanctioned to a freedom fighter by Rs.200/- p.m. and in case of families varied from Rs.100/- to Rs.200/- in accordance with the size and number of eligible dependents in the family. Till 31[st] July, 1980 the Freedom fighters pension was admissible only to those who were in need of financial assistance on account of their meager annual gross income. Thus an annual income ceiling of Rs.5000/- was enforced for eligibility to pension. From 1.8.1980, the benefit of the pension scheme has been extended to all freedom fighters as a token of SAMMAN to them. W.As. 122/2019 & 1691/2019 -:16:- ## 2. ENHANCED RATE OF PENSION: Note only the income ceiling has been removed from 1st August, 1980 but the quantum of monthly pension has also been raised. The monthly pension has thus been increased from Rs.200/- to Rs.300/- in case of living freedom fighters and from Rs.100/- to Rs.200/- to the widow of the late freedom fighter with additional Rs.50 p.m. each for unmarried daughter upto a maximum limit of Rs.300/- per month. ## 3. WHO ARE ELIGIBLE DEPENDENTS: For the purpose of grant of Samman pension, family includes (if the freedom fighter is not alive) mother, father, widower/widow if he/she has not since remarried, unmarried daughters. Not more than one eligible dependent can be granted pension and in the event of availability of more than one dependent the sequence of eligibility will be widow/widower, unmarried daughters, mother and father. ## 4. WHO IS ELIGIBLE? For the purpose of grant of Samman pension under the scheme, a freedom fighter is:- (a) A person who had suffered a minimum imprisonment of six months in the mainland jails before Independence. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 01.08.1980. ## EXPLANATION 1. Detention under the orders of the competent authority will be considered as imprisonment. 2. Period of normal remission upto one month will be treated as part of actual imprisonment. 3. In the case of a trial ending in conviction, under trial period will be counted towards actual imprisonment suffered. 4. Broken period of imprisonment will be totalled up for computing the qualifying period. W.As. 122/2019 & 1691/2019 -:17:- (b) A person who remained underground for more than six months provided he was: 1. a proclaimed offender; or 2. one on whom an award for arrest/head was announced; or 3. one for whose detention order was issued but not served. (c) A person interned in his home or externed from his district provided the period of internment/externment was six months or more. (d) A person whose property was confiscated or attached and sold due to participation in the freedom struggle. (e) A person who became permanently incapacitated during firing or lathi charge. (f) A person who lost his job (Central or State Government) and thus means of livelihood for participation in national movement. A MARTYR is a person who died or who was killed in action or in detention or was awarded capital punishment while participation in a National Movement for emancipation of India. It will include an ex-INA or ex-Military person who died fighting the British. xxxxxxxxxxxxxxxxxxxxxxx ## 8. LAST PRESCRIBED DATE FOR SUBMITTING APPLICATIONS The last date for receipt of applications invited in 1972 was fixed as 31.03.1974. As a result of the liberalization of pension scheme from 01.08.1980 to 31.07.1981 was given for filling applications for Samman pension. The persons who could not apply earlier due to any reason or who were not sanctioned pension even though they were eligible may submit their applications immediately but before 31st July, 1981. This date was extended. The receipt of applications has since been stopped after 31.03.1982. ## 9. HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED) The applicant should furnish the documents indicated below whichever is applicable:- ## (a) IMPRISONMENT/DETENTION ETC. W.As. 122/2019 & 1691/2019 -:18:- 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 Ex-MP or ex-MLA specifying the jail period (Annexure-I in the application form.) ## (b) REMAINED UNDERGROUND: (i) Documentary evidence by way of Court’s/Government orders proclaiming the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention. (ii) Certificates from veteran freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their nonavailability. ## (c) **INTERNMENT OR EXTERNMENT** (i) Order of internment or externment or any other corroboratory documentary evidence. (ii) Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. (Annexure II in the application.) Note:- The Certifier veteran freedom fighters in respect of underground suffering, internment/externment and the applicant should belong to the same administrative unit before the reorganization of States and their area of operation must be the same. ## Xxxxxxxxxxxxxxxxxxxxxx” ## 28. Annexure-2 appended along with the Scheme which speaks about Eligibility Conditions and Evidentiary Requirements for Swatantrata Sainik Samman Pension Scheme, 1980, is extracted hereunder: “ **ELIGIBILITY CONDITIONS AND EVIDENTIARY REQUIREMENTS FOR SWATANTRATA SAINIK SAMMAN PENSION SCHEME, 1980** . W.As. 122/2019 & 1691/2019 -:19:- ## 1. Who is eligible for Samman Pension:- All the persons who participated in the freedom movement in some way or the other are not eligible for Samman Pension. Details regarding eligibility of the freedom fighters for grant of Central Samman Pension are given in annexure 1 (Swatantrata Sainik Samman Pension Scheme, 1980). Dependents of martyrs are also eligible for grant of the pension. ## 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 of 2 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. ## 2.2 In case of underground suffering : (a) Documentary evidence by way of Court’s /Govt.’s orders proclaiming the applicant as an absconder, announcing an award on his head or for his arrest or ordering his detention. (b) In case records of the relevant period are not available, secondary evidence in the form of a Personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years and who happened to be from the same administrative unit 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. ## xxxxxxxxxxxxxxxxxx W.As. 122/2019 & 1691/2019 -:20:- ## **4. Acceptability of Secondary Evidence** Secondary evidences can be considered only if supported by a valid Non-Availability of Records Certificate (NARC), which should be in the following format: “ **All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available** .” 29. Letter dated 16.04.2009 issued by the Under Secretary to the Government of India, Ministry of Home Affairs, New Delhi to the Additional Chief Secretary, General Administration & fisheries Department, Government of Kerala, Thiruvananthapuram is extracted hereunder: “No.52/CC/K/33/2007-FF/SZ Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya Lok Nayak Bhawan, Khan Market, New Delhi 110 003, Dated 16[th] April, 2009 To, Dr. P. Prabhakaran, Additional Chief Secretary, General Administration & Fisheries Department, Government of Kerala, Thiruvananthapuram-695 001, Kerala. Subject: Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980 - Implementation of the judgment dated 1[st] December, 2008 of the Hon'ble Kerala High Court in Writ Petition (C) No. 9954 of 2007 (I) filed by Smt. Sarojini Damodaran W/o. late V.S. Damodaran regarding. Sir, I am directed to refer to the above mentioned subject and to state that in its judgment dated 1[st] December, 2008 the Hon'ble High Court of Kerala has directed the State Government to forward a proper verification-cum-entitlement W.As. 122/2019 & 1691/2019 -:21:- report with appropriate recommendation after considering the personal knowledge certificates produced from Shri Narayanan Ramankutty and Shri H.K. Chakrapani along with the certificates produced in respect of the certifiers and other materials available. 2. The State Government vide its letter No. 43143/FFP.A2/2007/GAD dated 28[th] February, 2009 has inter alia stated as follows: "The District Collector, Alappuzha in the letter second cited has reported that the Swatantrata Sainik Samman Pension application dated 15.03 2002 submitted by Shri VS. Damodaran and a subsequent representation of Smit Sarojini were rejected due to lack of documentary evidence.” ".......The claim of underground suffering from the very beginning of the Punnapra Vayalar Struggle might not be on the pronouncement of an arrest warrant issued against him. Hence the Personal Knowledge Certificates cannot be relied upon though the certifiers have certified that an arrest warrant was issued against the petitioner's husband. Moreover the petitioner has not produced a valid Non-availability of Records Certificate as required under the Swatantrata Sainik Samman Pension guidelines. The claim is found to be not recommendable and hence not recommended." 3. The claim of Smt. Sarojini Damodaran W/o late V.S. Damodaran has been examined in compliance of the directions of the Hon'ble High Court keeping in view the report of the State Government, documents on record and the applicable provisions of the Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980 and the following deficiency have been observed as under: (i) Primary Evidence: Nil (ii) Secondary Evidence: (a) NARC-State Government has not produced valid NARC. (b) PKCS PKCs of S/Shri Narayanan Ramankutty, Kittan Chakrapani and H.K. Chakrapani has been furnished by the petitioner but the same cannot be accepted in the absence of valid NARC. W.As. 122/2019 & 1691/2019 -:22:- (iii) State Government vide its letter No. 43143/FFP.A2/2007/GAD dated 28[th] February, 2009 has not recommended the claim. 4. In the given circumstances, the claim of Smt. Sarojini Damodaran W/o. late V.S. Damodaran does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Sanman Pension Scheme, 1980. It is, therefore, regretted that Smt. Sarojini Damodaran W/o. late V.S. Damodaran is not eligible for grant of dependent family pension under the Swatantrata Sainik Samman Pension Scheme, 1980. Hence, her claim is, hereby, rejected. 5. It is requested that this decision may please be communicated to Smt. Sarojini Damodaran w/o late V.S. Damodaran, under intimation to this Ministry. 6. This issues with the approval of the competent authority. Yours faithfully. (H.C. Bhanot) Under Secretary to the Government of India” 30. Relevant portions of the recommendation of State Government, General Administration (FFP-A) Department, Thiruvananthapuram, dated 01.01.2013, issued to the writ petitioner/respondent in W.A. No.122/2019 are extracted hereunder: “........The petitioner produced a copy of Personal Knowledge Certificate of H.K.Chakrapani and Narayanan Ramankutty, copy of Non-availability of Records Certificate from Chief Judicial Magistrate Court, Alappuzha. The following defects were found in the above documents: i) The petitioner has not produced the originals of the Personal Knowledge Certificate and Non-availability of Records Certificate from CJM Court, Alappuzha. Also not produced jail extracts and copy of Swatantrata Sainik Samman Pension sanctioning order of the certifiers. W.As. 122/2019 & 1691/2019 -:23:- ii) The claimed underground sufferings of the petitioner's late husband Sri. V.S.Damodaran is about 9 months in connection with PE 07/1122 ME commenced on 7.3.1122 ME. The main events of the Punnapra Vayalar Struggle was on 7.3.1122 ME. The claimed underground sufferings from the very beginning of the struggle might not be due to issue of an arrest warrant against the petitioner's husband. Voluntary underground sufferings/ self exile at the orders of the party leaders will not make one eligible for Swatantrata Sainik Samman Pension. Therefore the Personal Knowledge Certificate issued by H.K.Chakrapani could not be relied up on though the certifier has certified that an arrest warrant was issued against the petitioner's husband. The petitioner was directed to rectify the above mentioned defects. Subsequently she has submitted a representation dated 9.11.2012. Along with the representation she has enclosed the originals of the personal knowledge Certificates of H.K.Chakrapani, Narayanan Ramankutty and Non-availability of Records Certificate from Chief Judicial Magistrate Court, Alappuzha. It may be pointed out that as directed by the Government the petitioner has not produced the original of the Non-availability of Records Certificate from Chief Judicial Magistrate Court, Alappuzha dated 13.7.1989. Instead of producing the original of the same she has submitted a new Non-availability of Records Certificate from the Chief Judicial Magistrate Court Alappuzha dated 06.11.2012. As per the representation dated 9.11.2012 the petitioner has explained that it is not correct to say that the main events of Punnapra Vayalar Struggle started on 07.03.1122 ME. There were a lot of preparations before leading to the main incident of Police firing on 7.3.1122 ME at Punnapra. The claim of the petitioner is that her late husband had remained underground from 07.3.1122 ME to 11.12.1122 ME in connection with PE7/1122. As per the letter 1st cited, Government have already recommended this case at your end. In the circumstances based on the Personal Knowledge Certificate issued by Sri.H.K.Chakrapani and W.As. 122/2019 & 1691/2019 -:24:- Narayanan Ramankutty it is certified that “...All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available" In the circumstances the application for Swatantrata Sainik Samman Pension Case in respect of Smt.Sarojini Damodharan is recommended. A copy of the reference 3[rd] cited and other relevant documents are enclosed for further necessary action at your end. The direction contained in the judgment 2[nd] cited is thus complied with.” 31. After considering the judgment of a Hon'ble Division Bench of this Court in W.A. No.382/2010 and other connected cases dated 13.02.2012, Scheme, 1980, and recommendation of the State Government dated 1.1.2013, Central Government have rejected the claim of the respondent in W.A. No.122/2019 vide letter dated 15.01.2014, the relevant portions of which are extracted hereunder: “ xx xxx xxxxxxxxxxx 12. The claims of Samman Pension can be considered by the Central Government only when these are duly verified and recommended by the State Government/U.T. Administrations concerned along with the basis of such recommendations in accordance with the provisions of the Scheme. 12. The claim of the petitioner was re-examined in compliance of the Court Order dated 13.02.2012 and keeping in view the report of the State Government, evidence/ papers on record and in terms of the applicable provisions of the Swatantrata Sainik Samman Pension Scheme, 1980. On scrutiny, following discrepancies were observed in her claim: W.As. 122/2019 & 1691/2019 -:25:- (i) The petitioner has failed to produce any primary evidence based on official records in support of her husband's claimed Underground Suffering. (ii) The NARC issued by the State Government is not a valid one, as it is based on the PKCs issued by Shri Chakrapani and Shri Ramankutty, which is apparent from the State report dated 01.01.2013. The State Government should have verified the genuineness of the claim from all concerned sources and official records. It is clear from the State report, aforementioned, that the State Government has, once again, failed to understand the true spirit of the Judgment dated 13.02.2012, and issued NARC in the instant case, merely to implement the said Judgment. (iii) Even if we accept the validity of the NARC, the PKCs issued by Shri H.K. Chakrapani and Shri Narayanan Ramankutty are not acceptable. Both the certifiers have been found issuing such certificates indiscriminately and misusing their status of freedom fighters. Shri H.K. Chakrapani is not an eligible Certifier as he was granted pension by giving benefit of doubt to his claimed jail suffering. This leads to reasonable doubt about the genuineness of such PKC/CPC. This gathers strength from reports of Government of Kerala on the PKC issued by Sri.H.K. Chakrapani to other claimants. For example- (a) Government of Kerala had vide Letter No.46673/FFP A2/2006/GAD dated 20.02.2007 sent claim application, supporting documents and mandatory verification cum entitlement to pension report in respect of Smt.Stella Xavier and inter alia commented on the PKC issued by Sri. H.K. Chakrapani- "...In the Personal Knowledge Certificate issued by Shri H.K. Chakrapani, it is certified that the petitioner remained underground from 10/46. The Punnapra Struggle commenced only in the last part of 10/46 and the claimed underground sufferings from the same month should not have been due to the issue of an arrest warrant as it will take some time to complete the procedures of issue of Arrest Warrant. So the case of the petitioner is not recommendable for Swatantrata Sainik Samman Pension..." W.As. 122/2019 & 1691/2019 -:26:- (b) Government of Kerala had vide Letter No.50713/FFP A2/2008/GAD dated 18.11.2009 sent a claim application, supporting documents and mandatory verification cum entitlement to pension report in respect of Smt.Rajamma W/o Late A.K. Peethambaran and inter alia commented on the PKC issued by Sri.H.K. Chakrapani- “........Regarding the other Personal Knowledge Certificate given by Shri H.K. Chakrapani, it is seen issued only on 04.05.2006 i.e after sixty years of the claimed underground sufferings. The certificate issued after sixty years with specific details of the case no. and period of underground sufferings of the petitioner by another person seems doubtful. Moreover the certifier Shri Chakrapani has been sanctioned pension by Government of India only in 2003 by giving benefit of doubt. He has issued a number of Personal Knowledge Certificates indiscriminately. Hence the Personal Knowledge Certificate issued by him cannot be relied upon for recommendation of the Swatantrata Sainik Samman Pension claim of the petitioner" In view of the above, it is stated conclusively that Shri H.K. Chakrapani and Shri Narayanan Ramankutty are not eligible sectifiers, and PKC/CPCs, issued by them are not acceptable/reliable in terms of the SSS Pension Scheme, 1980. Moreover, the petitioner has failed to produce copy of jail extract and SSS Pension Sanctioning Order of any of the certifier, as stated by the State Government. (iv) The State Pension Scheme and the SSS Pension Scheme of UOI are two separate Schemes with different eligibility criteria being implemented by the two different authorities. The receipt of pension under the State Scheme does not automatically entitle a person for pension under the Central Scheme. For getting pension under the SSS Pension Scheme, 1980 a person has to fulfill the prescribed eligibility criteria of the Scheme and submit the necessary documentary evidence in support of the claim. (v) Government of Kerala had vide their aforesaid letter recommended the claim application, without specifying any W.As. 122/2019 & 1691/2019 -:27:- reason/basis for the positive recommendation, just in compliance of direction of the Hon'ble High Court vide Judgment dated 13.02.2012 in W.P.(C) No.18990 of 2010 filed by the petitioner. Hence, it is not acceptable. 13. The Division Bench of the Hon'ble High Court of Kerala, Ernakulam Bench has vide Judgment dated 22.06.2012 in the W.A.314 of 2011 heard with other W.A.s and W.P.s has observed as under: "Para 2 It is well settled now though the State Government positively recommends the case of the applicant, ultimately the authority considering the application at the Centre can reject the application and vice versa. "We also made it clear that the State authority or the Centre, while considering the applications for pension, shall not be persuaded or influenced by earlier opinion of the authorities, if any, and they have 10 consider the applications afresh by going through the materials placed before them as per the Scheme." 14. On this matter, it is pertinent to mention here that the Hon'ble Supreme Court in the case of M. L. Bhandari & Ors. Vs. Union of India (AIR 1993 SC 2127) has held that - "The petitioners would undoubtedly be entitled to the benefit of the Scheme provided, of course, they produce the relevant material in support of their claim." “As regards the sufficiency of the proof, the Scheme itself mentions the documents which are required to be produced before the Government. It is not possible for this Court to scrutinize the documents which according to the petitioners, they had produced in support of their claim and pronounce upon their genuineness. It is the function of the Government to do so. We would, therefore, direct accordingly. "The pension should, of course, be sanctioned only after the required proof is produced."; 15. The Division Bench of the Hon'ble High Court of Kerala, Ernakulam Bench vide Judgment dated 13.02.2012 in W.A.382/2010 heard with other Writ Appeals and Writ Petitions including this one, has referred to various W.As. 122/2019 & 1691/2019 -:28:- Judgments of the Hon'ble Supreme Court of India on this matter and ratified the requirement of fulfillment of evidentiary requirement and eligibility criteria of the SSS Pension Scheme, 1980. 16. In view of the above since, the claim of Smt. Sarojini Damodaran, W/o (Late) V.S. Damodaran does not meet the evidentiary requirements and eligibility criteria of the SSS Pension Scheme, 1980, it is regretted that the claim for grant of pension cannot be accepted and the claim is hereby rejected. This decision may please be communicated to the petitioner under intimation to this Ministry.” ## 32. Letter No.66582/FFP-A2/2012/GAD dated 27.09.2012 sent by the Secretary to the Government, General Administration (FFP-A) Department, Thiruvananthapuram, to the 1[st] respondent in W.A. 1691/2019 reads thus: “GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFP-A) DEPARTMENT No. 66582/FFP-A2/2012/GAD. Thiruvananthapuram, Dated 27.09.2012. From The Secretary to Government. To Smt. N. Rajamma Haridas, W/o. late Bava Haridas, Bunglowparambu, Arattuvazhy Ward, Alappuzha -688007. Sir, Sub:- Swatantrata Sainik Samman Pension - Judgment in WP(C) No.33476/2009 filed by Smt. N. Rajamma Haridas, W/o late Bava Haridas- reg. Ref: - 1. Judgment in WP(C) No.33476/2009 dated 29.6.2012 and Judgment in W.A No.382/2010 dated 13.2.2012 and connected cases. W.As. 122/2019 & 1691/2019 -:29:- ## 2. Your representation dated 13.8.2012. I am to invite your attention to the reference cited and inform that as per the judgment 1[st] cited the Hon'ble High Court has directed as follows: 'State machinery has to first look into the applications submitted by the Writ petitioners along with the documents and if any defects are found they must intimate the concerned persons to rectify or cure the defects within a reasonable time, thereafter, from the rectification of the defects within next three months, the State shall consider and forward the applications in accordance with the procedure contemplated under the Scheme, including issuance of Non-availability of Records Certificate.' As directed by the Hon'ble Court your claim has been examined in detail and the following defects were noticed. - i) The petitioner has not produced the originals of the Personal Knowledge Certificates and Non-availability of Records Certificate from Superintendent of Police & CJM Court, Alappuzha. - ii) As per the Swatantrata Sainik Samman Pension application your husband had gone underground for a period from 30.10.46 to 12.6.48 due to an arrest warrant in case No.PE07/1122. In the Swatantrata Sainik Samman Pension application he had not claimed any detention in connection with the said struggle. But Kerala Freedom Fighters Pension was sanctioned to the husband considering his claimed imprisonment in connection with Punnapra Vayalar Struggle. Your claim in the state and central pension application are at variance. In the circumstances you are requested to rectify the above defects and or cure submit acceptable documents for considering your claim for issuing of Non-availability within 30 days from the receipt of this letter. Yours faithfully, Sd/ J.SELVARAJ Under Secretary, For Secretary to Government.” W.As. 122/2019 & 1691/2019 -:30:- 33. Letter No.97312/FFP-A2/2013/GAD. dated 4.3.2014 sent by the Secretary to the Government, General Administration (FFP-A) Department, Thiruvananthapuram, to the appellant in W.A. No.1691/2019 recommending the claim of respondent No.1 for SSS Pension, reads thus: “GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFP-A) DEPARTMENT No.97312/FFP-A2/2013/GAD. Thiruvananthapuram, Dated, 04/03/2014 From The Secretary to Government. To The Secretary to Government of India, Ministry of Home Affairs, (F.F. Division), 2[nd] Floor, NDCC-II Building, Parliament Street, New Delhi: 110 003. Sir, Sub:- Swatantrata Sainik Samman Pension- Application submitted by Smt.Rajamma Haridas W/o (L) Bava Haridas - Verification report forwarding of - reg. Ref: 1. Your letter No.52/CC/K/132/2008 -FF (SZ) dated 8/2009 2. The Govt. Lr No.66582/FFPA2/2012/GAD dated 4.2.2013. 3. Application dated 7.12.2013 submitted by Smt.Rajamma Haridas. 4. Letter No.CP5-43/717/1972/ dated 12.2.2014 from the Superintendent, Central Prison, Thiruvananthapuram. I am directed to invite your attention to the reference cited. As per the reference cited, you had rejected the claim of Smt. Rajamma Haridas, stating that the claim is based on secondary evidence and the Non availability of Records Certificate submitted is not valid. Then the petitioner filed a W.P(C) 33476/2009 (D) before the Hon'ble High Court and in W.As. 122/2019 & 1691/2019 -:31:- its judgment the Court directed the State Government to look into the application submitted by the petitioner and forward verification report along with the Swatantrata Sainik Samman Pension application of the petitioner to Government of India after curing the defect in the application by the petitioner. Accordingly, the Government have forwarded the verification report vide letter 2[nd] cited. Final decision from Government of India has not been received till date. Now, as per reference 3 cited the petitioner has submitted a new Swatantrata Sainik Samman Pension application claiming that her husband had undergone R.I. for six months in Central Prison, Thiruvananthapuram. To substantiate the claim, she had produced the true extract of the convict register (in original). As per the extract of convict register, the date of admission of Sri.Bava Haridas is 2 Chingam 1125 (18.8.1949) and date of expiry of sentence is 28 Makaram 1125 (10.02.1950). He was released on 26.01.1950 under order of Government. Though the period of imprisonment is below six months he was sentenced for 6 months. Remission of a period up to 30 days in a sentence of six months should be taken into consideration (circular No.8/24/74- FF(P) dated 23.8.74). Here the remission is for 15 days. Government had verified the genuineness of the true extract through the Superintendent, Central Prison, Thiruvananthapuram and he has certified vide reference 4[th] cited that it is genuine. In the above circumstances, as the petitioner relied upon primary evidence and the certificate produced found genuine, the case is hereby recommended for Swatantrata Sainik Samman Pension. Copies of reference 3rd and fourth cited are forwarded herewith recommending the case for further necessary action at your end. Yours faithfully, K. R. JYOTHILAL SECRETARY TO GOVERNMENT” 34. Letter issued on 25.06.2014 to the Secretary, General Administration Department, Government of Kerala, Thiruvananthapuram, by the Deputy Secretary to the Government of India, Ministry of Home W.As. 122/2019 & 1691/2019 -:32:- Affairs, produced as Exhibit-P9 in W.P.(C) No.36191/2018 leading to W.A. No.1691/2019 is extracted hereunder: “No. 52/CC/K/158/2009-FF(SZ) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya (FFR Division/SZ Section) 2[nd] floor, NDCC II, Parliament Street, New Delhi-110001, dated 19[th] June, 2014. To, Shri K.R. Jyothilal, Secretary, General Administration Department, Government of Kerala, Thiruvananthapuram-695 001. Subject:- Swatantrata Sainik Samman Pension application dated 07.12.2013, submitted by Smt. Rajamma Haridas, W/o (Late) Shri Bava Haridas-regarding Sir, I am directed to refer to the Government of Kerala's letter No. 97312/FFP A2/2013/GAD dated 04.03.2014 on the subject cited above, vide which afresh mandatory verification report on the SSSP claim application dated 07.12.2013, submitted by Smt. Rajamma Haridas, has been sent to this Ministry for reconsideration of the claim of the petitioner for grant of SSS pension, which has been followed by reminder dated 23.05.2014. 2. As per petitioner's new Swatantrata Sainik Samman Pension application dated 07.12.2013, the petitioner's late husband Shri Bava Haridas was sentenced for six months in C.C No. 238/1124 ME on the file of the Divisional 1" Class Magistrate, Alappuzha u/s 9(5) of Act 1 of 1122 in connection with the Punnapra Vayalar Movement. On perusal of the aforesaid letter dated 04.03.2014, it is found that Government of Kerala has not categorically stated as to whether C.C No. 238/1124 ME on the file of the Divisional 1" Class Magistrate, Alappuzha pertains to the Punnapra Vayalar Movement as claimed by the petitioner. It is, therefore, requested to furnish the following clarifications/information/documents: W.As. 122/2019 & 1691/2019 -:33:- - (a) Whether the said case pertains to the Punnapra Vayalar Struggle? If so, please provide the authentic copies of the case file. - (b) A list of all the cases pertaining to the Punnapra Vayalar Movement. - (c) Whether Bava Haridas, mentioned in the convict register and husband of the petitioner is one and the same person. 3. Pending receipt of the above, no action is being taken at this end. Yours faithfully, (D.K. Goel) Deputy Secretary to the Government of India” 35. Apart from the above, the Principal Secretary to the Government, General Administration Department, Thiruvananthapuram, as per letter No. FFP-A2/31/2018/GAD. dated 16.08.2018 informed the 1[st] respondent in W.A. No.1691/2019 that the details requested as per letter dated 17.03.2015, have already been forwarded to the Government of India and that as a part of complying with the judgment dated in W.P.(C) No.10045/2009, a copy of the same is enclosed herewith for information. 36. Letter dated 17.03.2015 issued by the Secretary to the Government, General Administration (FFP-A) Department, to the Central Government is extracted hereunder: “No.97312/FFP-A2/2013/GAD Thiruvananthapuram, Dated: 17.03.2015. From The Secretary to Government. W.As. 122/2019 & 1691/2019 -:34:- ## To The Secretary to Government of India, Ministry of Home Affairs, FFR Division/SZ Section, 2[nd] Floor, NDCC-II, New Delhi 110 001. Sir, Sub:- GAD- Swatantrata Sainik Samman Pension Scheme, 1980 - application submitted by Smt. Rajamma Haridas - Details forwarding - reg. Ref:1) Government letter No.97312/FFPA2/2013/GAD dated 4.3.2014. - 2) Your letter 52/Cc/K/158/2009 - FF (SZ) dated 19.06.2014. - 3) Letter No.C.P 5-57/2014 dated 16.09.2014 from the Superintendent of Central Jail, Thiruvananthapuram, (copy enclosed) - 4) Letter No.H3-59302/13 dated 27.02.2015 from the District Collector, Alappuzha (copy enclosed) I am directed to invite your attention to the reference cited. In response to your letter referred 2[nd] above, State Government collected clarifications/informations from the Superintendent of Central Prison, Thiruvananthapuram and District Collector, Alappuzha. On the basis of the details furnished by them, I am directed to furnish the following details regarding the case in connection with the SSS pension claim of Smt. Rajamma Haridas for necessary action. a) On verification of the available Convict, judgment registers, the details regarding CC No.238/1124 ME are not available. Hence, it is unable to mention that CC. No.238/1124 ME is pertinent to Punnapra Vayalar struggle. b) The details of cases pertaining to the Punnapra Vayalar struggle are as follows: |Vol.I|Sl. No.|SC No.|PE No.| |---|---|---|---| ||1.|CC 35/53|6/122| ||2.|7/116|| ||3.|8/116|| ||4.|17/116|| ||5.|8/123|6/122| ||6.|--|9/122| W.As. 122/2019 & 1691/2019 -:35:- ||7.|--|10/122| |---|---|---|---| ||8.|3/123|| ||9.|CC 4/124|| |XXXXXXXXXXXXXXX|||| b) The name of freedom fighter Bava Haridas mentioned in the Convict Register and Haridas, H/o. Rajamma Haridas is one and the same. Yours faithfully, ## M. SHAHUL HAMEED JOINT SECRETARY From Secretary to Government” 37. In the letter issued by the Under Secretary to the Government of India, Ministry of Home Affairs, New Delhi, dated 11.10.2018 produced as Exhibit-P13 in W.P.(C) No.36191/2018 leading to W.A. No.1691/2019, it is stated that the claim of Smt. Rajamma Haridas has been examined, keeping in view the report of the State Government, documents on record, and applicable provisions of Swatantrata Sainik Samman (S.S.S.) Yojana. After examining the claim, it was found that she is not eligible for grant of Samman Pension, due to the following deficiencies/shortcomings: - (i) On going through the list of cases pertaining to the Punnapra Vayalar Struggle provided by the Government of Kerala, it is observed that the **Case No.238/1124 ME, in which the petitioner's claims had stated been involved** , is not seen in the said list. - (ii) The State Government has, vide their letter No.FFPA2/31/2018/GAD dated 16/08/2018, forwarded a copy of their earlier letter No.97312/FFP-A2/2013/GAD dated 17.3.2015 without their any specific recommendation. - (iii) As per the Scheme, the verification and recommendation report of the State Government is mandatory in view of the W.As. 122/2019 & 1691/2019 -:36:- fact that the documentary evidence of the claims are in the possession of the State Government/Union Territory Administrations and not of the Central Government. In this case, the State Government has not recommended the claim of the petitioner.” 38. Material on record discloses that the reason for declining SSS Pension to Smt. Sarojini Damodaran, respondent in W.A. No.122/2019, is that her claim does not meet the evidentiary requirements and eligibility criteria of the SSS Pension Scheme, 1980. Such a conclusion is arrived at by the Central Government on the basis of the judgment dated 22.06.2012 passed by a Hon'ble Division Bench of this court in W.A. No.314 of 2011 and other connected cases, wherein it was stated that it is well settled now, though the State Government positively recommends the case of the applicant, ultimately the authority considering the application at the Centre can reject the application and vice versa. 39. The claim of respondent in W.A. No.122/2019 is that her husband had remained underground from 07.03.1122 ME to 11.12.1122 ME, in connection with PE7/1122. In support of the claim, instead of producing the original copies, she has produced copy of Personal Knowledge Certificates issued by Mr. H.K.Chakrapani and Mr. Narayanan Ramankutty, and a new Non-availability of Records Certificate from the CJM Court, Alappuzha dated 06.11.2012 and further that, vide letter dated W.As. 122/2019 & 1691/2019 -:37:- 01.01.2013, Government has recommended the claim, without specifying any reason for the positive recommendation. 40. So far as the production of NARC and PKC are concerned, they revolve around paragraph 2.4 of the Pension Scheme, 1980, which clearly specifies that a person, on account of participation in the freedom struggle, was interned in his home or externed from his district for a minimum period of 6 months, is eligible subject to furnishing of order of internment or externment issued by the competent authority, from official records. It also specifies that in the absence of officials records, NARC from the State Government/UT Administration concerned, along with a certificate from prominent freedom fighter, who had proven jail sufferings of at least two years; who belonged to the same administrative unit and whose area of operation was same as that of the applicant, should be furnished. 41. It is pertinent to note that the State Government in its letter dated 01.01.2013 has stated that as per the representation dated 09.11.2012, Smt. Sarojini Damodaran has explained that it not correct to say that the main events of Punnapra Vayalar Struggle started on 7.3.1122 ME and that there was a lot of preparations before leading to the main incident of Police firing on 7.3.1122 ME at Punnapra. It was also stated therein that as per the letter dated 03.12.2009, Government have already W.As. 122/2019 & 1691/2019 -:38:- recommended her case. In such circumstances, based on the PKCs issued by Mr. H.K.Chakrapani and Mr. Narayanan Ramankutty, the Government certified that “all concerned authorities of the State Government, who could have relevant reports in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time not available”. 42. In our view, the Union Government has declined the recommendation made by the State Government on the ground firstly that, in the application, in regard to the date of underground suffering caused by the husband of the writ petitioner, she has failed to produce primary evidence based on official records in support of her husband's claimed Underground Suffering; secondly, the NARC issued by the State Government is not a valid one, as it is based on the PKC issued by Mr. Chakrapani and Mr. Ramankutty, which are apparent from the State report dated 1.1.2013; thirdly, even if we accept the validity of NARC, the PCKs issued by Mr. H.K.Chakrapani and Mr. Narayanan Ramankutty are not acceptable, since both the certifiers are misusing their status of freedom fighters. It is also stated that Mr. H.K. Chakrapani is not an eligible certifier as he was granted pension by giving benefit of doubt to his claimed jail suffering, which leads to a reasonable doubt about the genuineness of W.As. 122/2019 & 1691/2019 -:39:- such PKC/CPC. Various other reasons were also mentioned by the Central Government for rejecting the claim of the respondent in W.A. No.122/2019 in the letter dated 15.01.2014. 43. The specific case of the respondent in W.A. No.122/2019 is that as the claimant remained underground, there was no possibility to produce primary evidence, and therefore, the only piece of evidence that could be produced was the PKC and that the same had been produced in the format prescribed by the competent authority of the Union Government. Regarding the second ground for rejection, the respondent is not placing reliance on the PKC issued by Mr. Chakrapani, and therefore, what is to be examined is as regards the PKC issued by Mr. Narayanan Ramankutty. 44. Going through the order impugned before the writ court, it could be deduced that the Central Government had not adverted to the reasoning given in the recommendation of the State Government. In fact, the State Government had adverted to all aspects relatable to the eligibility of certifier, as well as other provisions of SSS Scheme. The crucial aspect is that the certifier was a SSS Pension recipient and his certified jail extracts were overlooked by the Central government while rejecting the application. We are also of the opinion that the Union Government cannot simply ignore the recommendation made by the State Government, W.As. 122/2019 & 1691/2019 -:40:- without assigning appropriate reasons. 45. On a perusal of the impugned judgments, we are convinced that the learned single Judge has taken into account the entire aspect of the matter and noted that the PKC issued by Mr. Narayanan Ramankutty has been duly acknowledged by the State Government authorities and letter of recommendation has also been issued; and therefore, even if it is assumed for a movement that the PKC of Mr. H.K.Chakrapani is not acceptable, the writ petitioner in W.P.(C) No.2470/204 is mainly placing reliance on the PKC issued by Mr. Narayanan Ramankutty. However, a conclusive finding is rendered by the learned single in the judgment in W.P.(C) No.10470/2013 dated 30.05.2018 that the non-consideration of PKC issued by Mr. Narayanan Ramankutty is unreasonable and arbitrary. 46. Clause 2.4 of the Scheme, 1980 dealing with internment or externment, discussed above, requires only one certificate of a certifier. In that view of the matter also, the rejection made by the Union Government on the ground that the certificate issued by Mr. H.K.Chakrapani is not acceptable, cannot be sustained. Apart from that, the various pros and cons of the issues were considered by the learned single Judge before arriving at the definite and final conclusion in respect of the writ petition filed by Smt. Sarojini Damodaran. W.As. 122/2019 & 1691/2019 -:41:- 47. Insofar as the claim of Smt. N. Rajamma Haridas, which is the subject matter of W.A. No.1691/2019 is concerned, the Central Government has rejected her application, basically relying on the decision of the Hon'ble Supreme Court in **Mukund Lal Bhandari & Others v. Union of India** [1993 Supp (3) SCC 2] and **Jagdamba Devi v. Union of India (UOI) and Ors** . [(2017) 3 SCC 688]. The first ground of rejection, as stated in the order impugned before the writ court was that, in view of the information conveyed in the letter issued by the State Government dated 17.03.2015, the case in which the husband of the respondent was convicted, cannot be said to be one in relation to Punnapra-Vayalar struggle, and therefore, her claim is untenable. 48. As regards the first ground for rejecting the claim of the respondent, as rightly observed by the writ court, there was no dispute as regards the authenticity and correctness of the jail certificate issued by the Superintendent of Central Prison, Thiruvananthapuram, produced as Exhibit-P1 in W.P.(C) No.36191/2018 dated 20.07.1972. Perusal of ExhibitP1 extract of convict register shows that the case in which the husband of the respondent was convicted and sentenced is the one in relation to C.C. No.238/1124 ME on the file of the Divisional First Class magistrate's Court, Alappuzha for offenses under Section 9(5) of the Travancore Emergency W.As. 122/2019 & 1691/2019 -:42:- powers Act, 1122. That apart, going through the letter dated 4.3.2014, produced as Exhibit-P8, it could be deduced that the State Government has verified the genuineness of the extract of Exhibit-P1 convict register through the Superintendent, Central Prison, Thiruvananthapuram, and he had certified it to be genuine. 49. Further, it is evident from Exhibit-P8 letter that, to substantiate the claim of the respondent, she has produced the true extract of the convict register, in original, wherein the date of admission of Mr. Bava Haridas, her husband, date of expiry of sentence; that he was released on 26.01.1950 under the order of Government; though the period of imprisonment is below six months, he was sentenced for six months; that remission of a period upto 30 days in a sentence of six months should be taken into consideration, etc., were stated. In fact, the husband of the respondent was also awarded thamrapathra by the Union Government, based on the recommendation of the State Government, on account of participation in the Punnapra-Vayalar movement. 50. Though it is stated in the letter dated 17.03.2015 by the State Government that on verification of the available convict judgment registers, the details regarding C.C. No.238/1124 ME are not available, and therefore, it is unable to mention that CC. No.238/1124 ME is pertinent to W.As. 122/2019 & 1691/2019 -:43:- Punnapra Vayalar struggle, the said letter does not contain a specific verification and entitlement report. However, in Exhibit-P8 letter dated 4.3.2014, the State Government has stated that the primary evidence and jail certificate/convict register, relied on by the respondent are genuine and hence, his case is positively recommended for grant of SSS Pension. As rightly observed by the learned single Judge, merely because the State Government has not reiterated the factual aspects in Exhibit-P12, cannot be a sole ground for rejecting the claim of the respondent. 51. In **Gurdial Singh v. Union of India** , [(2001) 8 SCC 8], the Hon’ble Supreme Court had occasion to consider a case where, for determination of eligibility, standard of proof is required for, and held that since the object of the Scheme is to honour and to mitigate the sufferings of the freedom fighters, a liberal and not a technical approach should be adopted and hence, a claim under the Scheme should be determined on the basis of probabilities and not by applying the test of “beyond reasonable doubt”. Relevant portion of the said judgment reads thus: “6. The Scheme was introduced with the object of providing grants of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the W.As. 122/2019 & 1691/2019 -:44:- country most of the citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from a foreign country is very cumbersome and expensive. Keeping in mind the object of the Scheme, the authorities concerned are required that in appreciating the Scheme for the benefit of freedom fighters a rational and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the Scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukund Lal Bhandari case [1993 Supp (3) SCC 2] observed: (SCC pp. 7-8, para 9) “The object in making the said relaxation was not to reward or compensate for the sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the freedom struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the Scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to W.As. 122/2019 & 1691/2019 -:45:- schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them for quite sometime now.” The Court categorically mentioned that the pension under the Scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not. 7. 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. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of “beyond reasonable doubt”. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence. 8. We have noticed with disgust that the respondent authorities have adopted a hyper-technical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the Scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of W.As. 122/2019 & 1691/2019 -:46:- the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and closed mind, completely ignoring the verdict of this Court in Mukund Lal Bhandari's case [1993 Supp (3) SCC 2]. We further feel that after granting the pension to the appellant, the respondents were not justified in rejecting his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in Mohan Singh v. Union of India [ CWP No. 3790 of 1994 (HC)] decided on 1-6-1995 and CWP No. 14442 of 1995 decided on 11-12-1995. 10. Accordingly the appeal is allowed by setting aside the order of the High Court impugned in this appeal and the order of the respondents dated 1-11-2000 (Annexure P- 14). The appellant is held entitled to the grant of pension by the State of Punjab and the Union Government as determined vide Annexures P-9 and P-10 but with effect from March,1996. The arrears shall be calculated and paid to the appellant positively within a period of six weeks from today, failing which he is held entitled to interest at the rate of 12% per annum from March 1996 till the date the arrears are actually paid. The appellant is also held entitled to the payment of costs quantified at Rs. 5000.” 52. A Hon’ble Division Bench of this Court in **Union of India v. Janakidas** reported in **2010 (1) KLT SN 79** (C. No.95) held that no individual citizen can be denied pensionary benefits under the scheme on any ground referable to delay by the State Government in forwarded papers to the Union of India. Relevant portion of the said decision is extracted hereunder: “7. We may notice that even among the fundamental duties of citizens, enumerated in Article 51A of the W.As. 122/2019 & 1691/2019 -:47:- Constitution, particularly Clauses (b) and (d) thereof, every citizen of India is duty bound to cherish and follow the noble ideals which inspired our national struggle for freedom; and to defend the country and render national service when called upon to do so. We are considering the case of a person who, though now no more, had done what is cherished in Article 51A of the Constitution, long before India became free. Therefore, in fact, there is no ground even for the Union of India to show that any delay that the State Government had committed in forwarding the papers should be considered against the interest of the petitioner for granting pension under the SSSP Scheme. The State Government and the Union Government are the executive limbs of the People of India as a Republican Nation and no individual citizen can be denied pensionary benefits referable to the SSSP Scheme, 1980 on any ground referable to the delay by the State Government in forwarding the papers to the Union of India. If such grounds were to be accepted, in our view, that will not serve, but defeat, the purpose sought to be achieved by the Scheme in question. We are also of the view that, what is indicative as the prime concept of the requirement of providing pension under the SSSP Scheme to the freedom fighter and family members, is part of the process by which the Nation follows the noble ideals which inspired those involved in the struggle for freedom.” ## 53. In **Kamalbai Sinkar v. State of Maharashtra** reported in ## (2012) 11 SCC 754, after considering the decision in **Gurdial Singh** (cited ## supra), the Hon’ble Supreme Court held as under: “6. Having perused the above materials on record, at the very outset, we wish to refer to the observations made by this Court in regard to the grant of freedom fighters' pension in the decision in **Gurdial Singh v. Union of India** [(2001) 8 SCC 8]. In para 7 of the judgment, this Court has highlighted the manner in which such claims are to be considered for grant of freedom fighters' pension. It will be worthwhile to make a reference to the said passage before expressing our conclusion with regard to the claim W.As. 122/2019 & 1691/2019 -:48:- of the appellant's husband in the case on hand. 7. Para 7 reads as under: ( **Gurdial Singh** case [(2001) 8 SCC 8] , SCC p. 14) “7. 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. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of ‘beyond reasonable doubt’. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence.” (emphasis added) 54. The entire aspect of the matter was considered by the learned single Judge while passing the impugned judgment and directions were issued taking into account the provisions of Scheme, 1980, as well as the parameters required for the grant of SSS Pension to the eligible persons. W.As. 122/2019 & 1691/2019 -:49:- 55. In sum and substance, the issues were elaborately considered by the learned single Judge, taking into account all the relevant materials, and we are of the clear opinion that there is no reason to interfere with the observations and findings made by the learned single Judge in the impugned judgments. 56. On a totality of the facts and circumstances, we have no hesitation to hold that the appellant has not made out a case of jurisdictional error or other legal infirmities, justifying interference in the judgments under appeals, dated 9.7.2018 and 29.11.2018 of the learned single Judge. In the result, appeals fail and accordingly, they are dismissed. **Sd/S.MANIKUMAR CHIEF JUSTICE** krj **Sd/SHAJI P.CHALY JUDGE** //TRUE COPY// P.A. TO C.J.