W.P.(C) No. 36477 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931** **WP(C).No. 36477 of 2008(P)** **-----------------------------------------** **PETITIONER(S):** **-------------------------** **JANU, W/O.K.K.THANKAPPAN, AGED 71, KUTTARATHIL HOUSE, UZHUVA, VAYALAR EAST, KALAVAMKODAM P.O., CHERTHALA.** **BY ADV. MR.J.OMPRAKASH** **RESPONDENT(S):** **---------------------------** **1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI.** **2. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, THIRUVANANTHAPURAM.** **R1 BY ADV.MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL R1 BY ADV. MR.LEJI ABRAHAM, CGC** **MR.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR GENERAL OF INDIA R2 BY GOVERNMENT PLEADER MR. M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WPC.NO.36477/2008 P** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDENT, SUB JAIL, ALAPPUZHA DTD. 14/08/73.** - **P2: COPY OF THE ORDER PASSED BY THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 10/06/72.** - **P3: COPY OF THE LETTER OF THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 4/08/73.** - **P4: COPY OF THE CO-PRISONER CERTIFICATE OF SRI.P.A.SOLOMON,Ex.M.P. IN THE PRESCRIBED ORM DTD. 9/03/2005.** - **P5: COPY OF THE APPLICATION AND ORDER IN CASE NO.P.E.10/1122 OF THE CJM COURT, ALAPPUZHA DTD. 3/05/2005.** - **P6: COPY OF THE REPRESENTATION OF THE PETITIONER DTD. 12/03/2005.** - **P7: COPY OF THE ORDER OF THE FIRST RESPONDENT DTD. 12/12/2005.** - **P8: COPY OF THE RECORD IN SC.NO.9/123 (P.E.NO.10/122 OF THE SESSIONS COURT, ALAPPUZHA DTD. NIL.** - **P9: COPY OF THE REPORT OF THE TAHSILDAR, CHERTHALA DTD. NIL.** - **P10: COPY OF THE ORDER OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA DTD. 12/09/2008.** **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **Kss** ## **P.N.RAVINDRAN, J.** --------------------------------------W.P.(C)No.36477 of 2008 ---------------------------------------Dated 16[th] February, 2010 ## **JUDGMENT** The petitioner who is the wife of Late K.K.Thankappan, a recipient of State Freedom Fighters' Pension, has filed this writ petition challenging Ext.P10 order passed by the Central Government rejecting her application for grant of Central Freedom Fighters' Pension under the Swtantrata Sainik Samman Pension Scheme (hereinafter referred to as `the Scheme' for short). She has also prayed for a writ in the nature of mandamus commanding the Union of India to grant Central Freedom Fighters' Pension to her under the scheme. 2. The petitioner's husband was granted State Freedom Fighters' Pension by Ext.P2 order dated 10.6.1972 issued by the District Collector, Alappuzha with effect from 1.4.1971 till his death. He was granted State Freedom Fighters' Pension for the reason that he had participated in the Punnapra Vayalar Movement and was in Police custody during the period from October, 1946 to September, 1947 in Sub-jail, Alappey. The petitioner's husband passed away in the year 1980. The Government of India had introduced the Scheme in the year 1980. As per that Scheme, participants in the Punnapra Vayalar W.P.(C)No.36477/2008 2 Movement were not eligible for Central Freedom Fighters' Pension. Participants in the said movement became eligible for Central Freedom Fighters' Pension only with effect from 31.3.1997. As per the Scheme, participants/widows of participants are eligible for Central Freedom Fighters' Pension. The petitioner submitted an application on 25.4.1998 for grant of Central Freedom Fighters' Pension. When the application was kept pending, even after receipt of the remarks of the State Government, she filed W.P.(C)No.33148 of 2004 in this Court. By judgment delivered on 27.5.2005, this Court directed the Central Government to pass orders on the petitioner's application for Central Freedom Fighters' Pension. That application was rejected by the Government of India and the decision communicated to the petitioner by Ext.P7 letter dated 12.12.2005. The grounds for rejection of the petitioner's application for Central Freedom Fighters' Pension are set out in paragraph 9 of Ext.P7. Paragraph 9 of Ext.P7 reads as follows: “9 On examination of the case, it is found that your late husband is not eligible for the grant of concerned _Samman_ pension due to the following discrepancies:- - (i) In your application, you have not specified the exact period of the claimed imprisonment suffering of your late husband. - (ii) You have not submitted any primary evidence from official records in support of your late husband's claimed jail suffering (as indicated in para 6 above). W.P.(C)No.36477/2008 3 - (iii) In the absence of primary evidence, secondary evidence can be considered if a valid NARC from the State Government is furnished. You have, however, failed to submit a valid NARC, which is a mandatory requirement for consideration of secondary evidence. - (iv) You have furnished a copy of the rejection order of the Chief Judicial Magistrate's Court, Alappuzha and Office of the Superintendent, Sub Jail, Alleppey regarding the petitioner's request for records related to the case No.PE 10/1122. However, this does not constitute an acceptable and valid NARC because it does not contain all the ingredients prescribed for a valid NARC as per para 6 above. - (v) A Co-Prisoner Certificate (CPC) is taken cognizance of only in conjugation with a valid NARC. Hence, the certificate of Shri.P.A.Solomon, Ex.M.P. is not acceptable (in the absence of a valid NARC). - (vi) You have not furnished any evidence to substantiate the claim of permanent incapacitation as per the requirements indicated in para 7 above. - (vii) For consideration of grant of Central _Samman_ Pension under the _Swatamtrata Sainik Samman Pension Scheme, 1980_ a positive recommendation of the concerned State Government is mandatory. The state Government vide its letter No.102438/FFP.A2/2005/GAD dated 26.7.2005 _inter-alia_ stated as follows:- - “....... After scrutiny of the documents produced along with the representation, the District Collector has reported that the petitioner is not eligible for Swatantrata Sainik Samman Pension.” “....... All the documents available and made available were considered. No convincing grounds are seen to W.P.(C)No.36477/2008 4 differ with the views of District Collector, Alappuzha, that the petitioner is not eligible for Swatantrata Sainik Samman Pension.” 3. Aggrieved by Ext.P7, the petitioner filed W.P.(C)No.8896 of 2006 in this Court. In that writ petition, the State of Kerala filed a counter affidavit and produced Ext.P8 report sent by the Court of Session, Alappuzha to the Additional Temporary Sessions Judge's Court, Thiruvananthapuram which shows that the petitioner's husband was the 21[st] accused in S.C.No.9/123 on the file of the Special Magistrate's Court, Alappuzha arising from P.E.No.10 of 122. The State Government also produced Ext.P9 report submitted by the Tahsildar, Sherthalai Taluk, on the application submitted by the petitioner's husband for grant of State Freedom Fighters' Pension, wherein also it is stated that the petitioner's husband had participated in the Punnapra Vayalar Struggle, that he was wounded in Police firing, that he was in Police custody for one year and that he was also under treatment for the injuries sustained by him. In view of Ext.P8 report and Ext.P9 certificate, this Court allowed W.P.(C)No.8896 of 2006 by judgment delivered on 4.1.2008 and directed the Government of India to reconsider the petitioner's application for grant of Central Freedom Fighters' Pension. The Government of India thereafter considered the petitioner's application and rejected it by Ext.P10 5 W.P.(C)No.36477/2008 holding that the Tahsildar had recommended the State Freedom Fighters' Pension to the petitioner's husband subject to production of proof and therefore, Ext.P9 cannot be relied upon as the petitioner has not produced proof of the fact that her husband was in Police custody in connection with the Punnapra Vayalar Movement. Ext.P10 is under challenge in this writ petition. 4. The petitioner contends relying on Ext.P1 certificate issued by the Superintendent of Sub Jail, Alappuzha, Ext.P2 order issued by the District Collector, Alappuzha sanctioning State Freedom Fighters' Pension to her husband, Ext.P4 certificate issued by Sri.P.A.Solomon, Ex-member of Parliament and a freedom fighter and Ext.P8 report and Ext.P9 certificate issued by the Tahsildar that the rejection of her application for grant of Central Freedom Fighters' Pension for the reasons stated in Ext.P10 is arbitrary and illegal. It is contended that when the Superintendent of Sub Jail, Allappey has certified that no records relating to the imprisonment of the petitioner's husband in the Sub-jail, Alappuzha are available, the Central Government cannot insist on production of such a certificate from the State Government. It is also contended that as the coprisoner who was a former Member of Parliament has certified that the petitioner's husband had undergone imprisonment in Sub-jail, W.P.(C)No.36477/2008 6 Alappuzha during the period from October, 1946 to September, 1947 and Exts.P8 and P9 probabilise the same, Government of India ought to have accepted her application and granted Central Freedom Fighters' Pension to her. 5. A counter affidavit has been filed on behalf of the first respondent wherein, inter alia it is contended that in the absence of a certificate issued by the State Government regarding the nonavailability of records and in the absence of proof of the fact that the petitioner's husband had undergone imprisonment in connection with the Punnapra Vayalar Movement, the petitioner cannot be granted Central Freedom Fighters' Pension. It is contended that as per the Swatantrata Sainik Samman Pension Scheme, non-availability of records certificate has to be issued by the State Government and not by the Jail Superintendent. It is also contended that no reliance can be placed on Ext.P9 certificate for the reason that the Tahsildar, Shertalai had only recommended grant of State Freedom Fighters' Pension subject to production of proof and that Ext.P8 report sent by the Court of Session, Alappuzha to the Additional Temporary Sessions Judge's Court, Thiruvananthapuram does not prove that the petitioner's husband had undergone imprisonment as claimed by her. 7 W.P.(C)No.36477/2008 6. I heard Sri.J.Omprakash, the learned counsel appearing for the petitioner and Sri.T.P.M.Ibrahim Khan, the Assistant Solicitor General of India appearing for the first respondent. I also heard Sri.M.A.Asif, the learned Government Pleader appearing for the State of Kerala. I have also gone through the pleadings and the materials on record. The fact that the petitioner's husband was the recipient of State Freedom Fighters' Pension is not in dispute. The Government of India does not dispute the said fact. Ext.P2 order passed by the District Collector establishes the fact that the petitioner's husband was receiving State Freedom Fighters' Pension from the State Government. It is also not in dispute that the State Pension was granted to him for the reason that he had undergone imprisonment in Sub-jail, Alappuzha during the period from October, 1946 to September, 1947 in connection with the Punnapra Vayalar Movement. It was granted based on Ext.P9 report submitted by the Tahsildar, Shertalai after enquiry. The District Collector has in Ext.P9 report certified that the petitioner's husband was injured in the Police firing during the Punnapra Vayalar Struggle and that he was in Police custody for about an year. Ext.P8 report sent by the Sessions Court, Alappuzha to the Court of the Additional Temporay Sessions Judge's Court, Thiruvananthapuram establishes beyond doubt that the petitioner's W.P.(C)No.36477/2008 8 husband was the 21[st] accused in S.C.9/123. It was based on Ext.P9 report submitted by the Tahsildar, Shertalai that the District Collector issued Ext.P2 order sanctioning State Freedom Fighters' Pension to the petitioner's husband. However, by Ext.P10 the Government of India rejected the petitioner's application for grant of Central pension on the short ground that Ext.P9 cannot be relied on as the Tahsildar had recommended the claim of the petitioner's husband for State pension “subject to production of proof “ and that such proof has not been produced before any authority namely Tahsildar, State Government or the Central Government. 7. In my opinion, the stand taken by the Government of India in Ext.P10 cannot be sustained. The Government have while coming to the said conclusion proceeded on the basis that Ext.P9 report was not acted upon. Ext.P2 order issued by the District Collector , Alappuzha conclusively establishes the fact that Ext.P9 report was accepted and the petitioner's husband was granted State pension. Therefore, the stand taken by the Government of India in Ext.P10 that proof has not been produced before any authority cannot be sustained. Yet another reason stated by the Central Government in Ext.P10 is that when the State Government forwarded its recommendation as per report dated 7.1.2008, the Government had W.P.(C)No.36477/2008 9 not given reasons for recommending grant of Central Freedom Fighters' Pension to the petitioner's husband. It is also stated that in the absence of any supporting material, the recommendation of the State Government cannot be relied on. In my opinion, the said stand also cannot be sustained. As stated earlier, after due enquiry, the District Collector, the then competent authority had granted State Freedom Fighters' Pension to the petitioner's husband. He was drawing State pension till his death. Ext.P4 certificate issued by a coprisoner and a former Member of Parliament also establishes beyond doubt that the petitioner's husband had undergone imprisonment in Sub-jail, Alappuzha during the period from October, 1946 to September, 1947 and that he was also tried by the Court of the Special Magistrate, Alappuzha in P.E.10/1946. As noticed earlier, Ext.P8 report also proves the said fact. Further, it is evident from Ext.P1 certificate issued by the Superintendent of Sub-jail, Alappuzha that the records relating to the period in question are not available. A learned single Judge of this Court has in _**Lennyamma**_ v. _**Union of India**_ (2009 (2) KHC 746) held that a certificate of non-availability of records issued by the Jail authority is sufficient for the purpose of the Scheme and that the Government of India cannot insist that a certificate issued by the State Government should be produced. In W.P.(C)No.36477/2008 10 such circumstances, I am constrained to hold that the grounds stated by the Central Government to reject the petitioner's application for grant of Central Freedom Fighters' Pension under the Swatantrata Sainik Samman Pension Scheme, 1980 cannot be sustained. The Government of India have in my opinion, not given any cogent or valid reasons justifying the rejection of the petitioner's application for pension. I accordingly allow this writ petition, quash Ext.P10 and direct the Government of India to grant Central Freedom Fighters' Pension to the petitioner under the Swatantrata Sainik Samman Pension Scheme, 1980 with effect from the date of receipt of her application, complete in all respects, from the State Government. Necessary orders in that regard shall be issued and arrears of Pension disbursed to the petitioner within three months from the date on which the petitioner furnishes a certified copy of this judgment to the Secretary to Government of India, Ministry of Home Affairs, Freedom Fighters' Division. P.N.RAVINDRAN Judge TKS