IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 11033 of 2008(L) -------------------------- PETITIONER(S): --------------- SARASAMMA, W/O.KRISHNAN KARUNAKARAN, AGED 72, THOTTATHUSSERIL, MUHAMMA P.O., ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH 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 TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.GEORGE JOSEPH, ADDL.CGSC FOR R1 GOVT. PLEADER SHRI.M.A.ASIF for R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6.8.2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No. 11033 of 2008 ================== Dated this the 6th day of August, 2010 J U D G M E N T The petitioner is the widow of a freedom fighter, viz., Krishnan Karunakaran. Having participated in the Punnapra Vayalar Struggle, which has been recognized as part of the freedom struggle of India, the petitioner's late husband submitted Ext.P1 application for pension under the Swatantratha Sainik Samman (SSS) Pension Scheme. He was already a recipient of freedom fighter's pension under the Kerala Freedom Fighters' Pension Scheme. The petitioner's late husband claimed 14 months' underground sufferings during the Punnapra Vayalar struggle. In support of his claim, he submitted Ext.P3 personal knowledge certificate from one Kunjan Sukumaran along with Ext.P4 extract from the jail records of the said Sukumaran showing his imprisonment in jail for three years, as also Ext.P6 Non Availability of Records certificate (NARC) from the court where, the case, on registering of which, the petitioner's husband went underground. The same was rejected by Ext.P7 order on the ground that both the NARC and personal knowledge certificate are not acceptable. The petitioner is challenging Ext.P7 order in this writ petition. 2. Subsequent to the filing of the writ petition, the petitioner has also produced the recommendation from the Government of Kerala recommending the case of the petitioner's husband for pension under w.p.c.11033/08 2 the SSS pension scheme, obtained by resort to the provisions under the Right to Information Act. The petitioner would contend that after the death of the petitioner's husband, the petitioner filed this writ petition to follow up her case for freedom fighter's pension for the underground sufferings of her husband during the freedom struggle. The petitioner submits that those documents are sufficient to prove the case of the petitioner for freedom fighter's pension under SSS Pension Scheme. 3. A counter affidavit has been filed on behalf of the 1st respondent, which, as is usual in cases relating to freedom fighters' pension, is vague as vague can be. There is absolutely no controverting of any of the contentions of the petitioner in the writ petition. All what it says is that the records relating to the claim of the petitioner's husband for pension are missing and the State Government has been asked to forward copies for reconstruction of the files. That itself was on 17.11.2008 as is evident from Ext.R1. Even after two years, nothing is forthcoming in this case. It is interesting to note that the poor petitioner was able to obtain Ext.P9 document by resort to the Right to Information Act. Stil the mighty Union of India was unable to get copies of the documents relating to the petitioner's claim for freedom fighter's pension in respect of the underground sufferings of the petitioner's husband in the Indian freedom struggle. 4. I have considered the rival contentions in detail. 5. There is nothing to consider at all except to accept the w.p.c.11033/08 3 contentions of the petitioner, since there is no proper counter affidavit in this writ petition refuting the contentions of the petitioner. The reasons stated in Ext.P7 order rejecting the petitioner's claim for freedom fighter's pension are as follows; “(i) the copy of the NARC submitted by you from Judl. Ist Class Magistrate, Sherallai does not seem to have been verified by State Govt. about its genuineness. (ii) the Personal knowledge certificate issued by Shri.K.Sukumaran is not acceptable as the certifier has not tick mark any of the following conditions, the consequent upon which you have to go underground viz. (i) a proclaimed offender (ii) one on whom an award for arrest/head was announced; (iii) one whose detention order was issued but not served. (iii) You have failed to mention the exact period of your underground suffering. (iv) Further in the absence of record, you could have submitted the evidence from the following sources viz., (a) Police Station where FIR was lodged and copy of FIR. (b) Record of Jurisdictional court trying criminal cases and whether the concerned court was in existence in the year in which suffering has been claimed. (c) Copy of warrant of arrest. (d) Abstracts from Absconders Register. (e) Whether any action taken to attach/forfeit your property for non appearance and if so, copy of order/decree. (f) Whether there is any contemporary CID report etc. (g) copy of order of Civil Judge, executing the decree. (h) What was the final outcome of the case. It is therefore regretted that your request for the grant of SSSP pension cannot be acceded to as per the provisions of the Scheme.” w.p.c.11033/08 4 6. As far as the NARC is concerned, there is no merit in the contention that the NARC has not been verified by the State Government about its genuineness. In Ext.P9 recommendation of the State Government, they have specifically stated thus; “I am to forward herewith the application cited together with its enclosures and to inform you that the applicant has submitted application for SSS Pension for having remained underground for more than six months in connection with Punnapra-Vayalar struggle. In support of his claim he has produced abscondence certificate from Shri.Kunjan Sukumaran. The applicant is a KFF pensioner. The District Collector, Alapuzha has recommended the case for SSS pension. A copy of the report of the District Collector, Alappuzha is also forwarded herewith. The application is recommended for SSS pension.” That would be an ample certificate for the fact that the State Government considered the NARC as genuine and acceptable. As far as the personal knowledge certificate is concerned, even in Ext.P7, they do not state that Kunjan Sukumaran is not a valid certifier. Therefore, the only contention is that he has not tick marked the applicable sentence in Ext.P3. That certificate reads thus: “I hereby certify that Shri/Smt./Kumari.Krishnan Karunakaran son/daughter/wife of Shri.Krishnan resident of Thottathusseril, Charamangalam, Muhamma P.O. Alleppy District is a bonafide freedom fighter who a) remained underground for more than six months for the period from 11.3.1122 ME to 6.5.1123 ME as he/she was i) a proclaimed offender, or ii) one on whom an award for arrest was announced or iii) One for whose detention orders were issued by the evaded arrest. b) ordered to be arrested from his District, or Interned in his home for a period of more than six months from ... (month & year) to ... On account of his/her participation in the PUNNAPRA VAYALAR struggle movement during the freedom struggle. To the best of my knowledge and w.p.c.11033/08 5 belief he/she did not secure reprieve on account of any oral or written apology tendered by him/her. Also did not go underground voluntarily or from fear of arrest on account of his patriotic activities. dated at Place. Charamangalam the 21st day of April 1998” I am of opinion that it is not necessary to probe into the certificate to such minute details to reject the claim of a freedom fighter. Ext.P3 read with the application filed by the petitioner's husband is more than sufficient to prove that the petitioner's husband had suffered 14 months' underground suffering from 11.3.1122 (M.E) to 6.5.1123 (M.E) in Punnapra Vayalar struggle. Hence, especially in the absence of any answer to the petitioner's contentions in the writ petition, I am more than satisfied that the petitioner has amply proved her case for pension under the SSS pension scheme in respect of her husband's underground sufferings during the freedom struggle. Therefore, she is entitled to pension under the SSS pension scheme atleast from 13.10.1999, which is the date of Ext.P7. The same shall be paid to the petitioner. Arrears shall be paid within one month from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.11033/08 6