IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 34391 of 2007(T) -------------------------- PETITIONER(S): --------------- K.SOOLAPANI WARRIAR, AGED 78 YEARS, S/O.KIZHAKKEPPATTU VARIATH PARUKUTTY WARRASSIAR, KIZHAKKEPPATTU WARRIAM, KUTTANELLUR, RESIDING AT "VAISAKHAM", THAMPI ROAD, BEYPORE NORTH P.O CALICUT - 673 015. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.A.SAMEER RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION LOK NAIK BHAVAN, NEW DELHI - 110 003. 2. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION F F P (B) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, THRISSUR. R1 BY SRI.S.R.AJITH, ADDL.CGSC R2 & R3 BY SHRI V.T.K. MOHANAN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON 17/12/2008 DELIVERED THE FOLLOWING: APPENDIX EXT.P1- TRUE COPY OF THE APPLICATION DATED 18.7.1981 SUBMITTED BY THE PETITIONER EXT.P2-TRUE COPY OF APPLICATION DT.14.9.92 BY DO. EXT.P3-TRUE COPY OF COMMUNICATION DATED 7.3.96 BY R1 EXT.P4-TRUE COPY OF JUDGMENT IN OP 3358/2000 DT.19.6.07 EXT.P5-TRUE COPY OF ORDER DATED 4.10.2000 ISSUED BY R1 EXT.P6-TRUE COPY OF COMMUNICATION DATED 24.4.01 BY R1 TO R3 EXT.P7-TRUE COPY OF CERTIFICATE DATED 18.5.01 ISSUED BY C.I. OF POLICE, THRISSUR. EXT.P8-TRUE COPY OF REPRESENTATION DT.18.5.01 BY THE PETITIONER BEFORE R3 EXT.P9-TRUE COPY OF COMMUNICATION DT.1.6.2001 OF R3 EXT.P10-TRUE COPY OF THE REPRESENTATION DATED 20.6.2001 SUBITTED BY THE PETITIONER. EXT.P11-TRUE COPY OF THE COMMUNICATION DT.19.7.2001 OF KERALA GOVT. TO R1 EXT.P12- TRUE COPY OF JUDGMENT DATD 30.7.03 IN OP 2294/03 EXT.P13-TRUE COPY OF REPRESENTATION DT.15.12.03 SUBMITTED BY THE PETITIONER EXT.P14-TRUE COPY OF THE COMMUNICATION DT.16.12.2004 OF THE GOVT. OF KERALA TO R1 EXT.P15-TRUE COPY OF THE LAWYER'S NOTICE SENT TO R1 EXT.P16-TRUE COPY OF COMMUNICATION DT.18.6.07 RECEIVED BY THE COUNSEL FROM R1 EXT.P17-TRUE COPY OF ORDER DATED MAY 2007 ISSUED BY R1 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 34391 of 2007-T - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of December, 2008. JUDGMENT The petitioner herein, a freedom fighter, has approached this court third time, as his application for grant of pension under the Swathanthratha Sainik Samman Pension Scheme stands rejected. According to him, for his active participation in the freedom struggle in 1945 a warrant of arrest was issued to detain him and he had gone underground from January 1945 to September 1945 and ultimately he was sentenced to one year imprisonment and was in Viyyur Central Jail, Thrissur. 2. Ext.P1 is the copy of the application submitted by the petitioner in the year 1987. He was directed to provide some more particulars and accordingly Ext.P2 was submitted. Again, by Ext.P3, his request was rejected for the reasons stated therein. This was challenged in O.P.No.3358/2000 which was disposed of by Ext.P4 judgment after entering various findings in his favour. The proceedings against him, Exts.P10 and P16 therein, were quashed. This court was pleased to hold that the certificates of Shri E. Moidu Moulavi, Ex.M.P. and Shri M.S. Kumaran can be accepted as proof of petitioner's claim and the first WPC 34391/2007 2 respondent was directed to pass fresh orders taking into consideration the above two certificates. Thereafter, by Ext.P5 again the application was rejected. While rejecting the application it was specifically mentioned that if evidence is produced, the issue can be reconsidered. Therefore, he produced Ext.P7 non-availability of records certificate and on his request the District Collector forwarded various details to the Secretary to Government, State of Kerala as per Ext.P9. The petitioner also filed a detailed representation by way of Ext.P10. The State Government by Ext.P11, forwarded to the first respondent, the non-availability of records certificate issued by the Circle Inspector of Police, Thrissur East. Since there was no further response, again the petitioner approached this court in O.P.No.2294/2003 and by Ext.P12 judgment, this court directed the State Government to recommend the case of the petitioner within two months. The petitioner subsequently forwarded a copy of the judgment along with Ext.P13 representation. He was informed by the State Government that they have taken appropriate follow up action. As per Ext.P14 letter dated 16.2.2004 his application was recommended by the State Government. Later, he issued a notice of contempt, Ext.P15, through his counsel. Then, the first respondent forwarded along with Ext.P16 a copy of the order passed in May 2007 holding the view that the petitioner is not eligible for WPC 34391/2007 3 grant of Samman pension under the Swatanthratha Sainik Samman Pension Scheme. This is under challenge in this writ petition. 3. Learned counsel for the petitioner submitted that the acceptability of the materials produced by the petitioner have been adjudicated firstly in Ext.P4 judgment and later in Ext.P12 judgment and the approach made by the first respondent ignoring the binding directions in the above judgments, cannot be sustained. It is, therefore, submitted that as the findings rendered in the above judgments have become final, the respondents cannot obviously take up the issues which have been concluded by the above judgments and reject the application. 4. The reasons stated in Ext.P17 order are that the petitioner has not furnished records by way of primary evidence, he has not furnished a valid NARC from State Government and in the absence of valid NARC, secondary evidence, i.e. the co-prisoners' certificates (CPCs)/Personal Knowledge Certificates (PKCs) cannot be considered and are not acceptable. The certificates from S/Shri M. Moidu Moulavi, Ex.M.P., M.S. Kumaran and P.M. Thomas are not acceptable. It is also stated that a person getting pension under the State Scheme does not automatically become entitled for Central Pension. Finally it is stated that the State Government's recommendation is negative. WPC 34391/2007 4 5. A resume of the facts will be necessary to find out whether the reasons stated therein could be accepted. The earliest communication rejecting his application is Ext.P3, wherein mainly it was stated that the certificates from Shri E. Moidu Moulavi, Ex.M.P. and Shri P.M. Thomas are not acceptable. The certificate from Shri M.S. Kumaran was rejected by another order. The said issue was adjudicated by this court while rendering Ext.P4 judgment. While referring to the above reasons, it was held in para 2 that the said reason for rejecting the certificates from competent certifiers is not reasonable. The learned Judge was pleased to hold that “the certificate issued by Shri E. Moidu Moulavi, Ex.M.P., a well known freedom fighter cannot be easily brushed aside on the ground that both persons belong to different places. That certificate is more acceptable because the State Government has relied on the above certificate.” Regarding the certificate issued by Shri M.S. Kumaran, it was held that “the certificate of Shri M.S. Kumaran was rejected on the ground that he did not have two years imprisonment. Ext.P13 convict register of the Central Prison, Viyyur shows that he was convicted for two years but given remission of three months and 15 days. That is why his actual period of sentence fell short of two years. On that technical plea Shri Kumaran's certificate cannot be rejected. Moreover, Ext.P12 shows that Shri M.S. Kumaran was awarded WPC 34391/2007 5 'Thamrapatra'. Therefore, the rejection of Shri M.S. Kumaran's certificate on the ground that he did not have actual imprisonment, though sentenced for two years imprisonment, is not correct.” Therefore, it was held by this court that both the certifiers are competent and their certificates are acceptable. This is evident from the concluding portion of the judgment wherein it was further held that “ in this case I am satisfied that the certificate of Shri E. Moidu Moulavi and Shri M.S. Kumaran can be accepted as proof of the petitioner's claim. Therefore, I quash Exts.P10 and P16. The first respondent is directed to pass fresh orders taking into consideration the two certificates mentioned above and to pass appropriate orders in accordance with law.” In that view of the matter, the first respondent cannot go back on the acceptability of the above two certificates, as the above findings are clearly binding on them. Admittedly, no appeal has been filed from the above judgment. Therefore, what would have normally followed is to pass fresh orders in accordance with the findings rendered in the above judgment. 6. The subsequent order, viz. Ext.P5 shows that three reasons were mainly raised therein: (a) The petitioner has not submitted evidence from any official records, i.e. court/Government order proclaiming him as an absconder, etc. or in the absence thereof, a Non-Availability of Records WPC 34391/2007 6 Certificate (NARC) from State Government in support of the secondary evidences like Personal Knowledge Certificates; (b) The certificates of Shri E. Moidu Moulavi and Shri M.S. Kumaran submitted by the petitioner are not acceptable evidence under the Scheme, as the same are not supported by necessary NARC from the State Government; and © The State Government did not make any specific recommendation. 7. This court considered the validity of the above order in Ext.P12 judgment. It was held in para 2, after referring to the earlier judgment Ext.P4, that “thus, the position is clear that petitioner has been certified as a person who was eligible to get pension employing the normal parameters.” After noticing that the petitioner has produced fresh certificates and the fact that the State Government has already forwarded those certificates to the Central Government and the further fact that there is no recommendation by the State Government, this court directed the State Government to forward a certificate showing the recommendation. Ext.P14 letter dated 16.2.2004 from the State Government to the Central Government shows that the case is recommended and it has also been 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.” Thus, there is a valid WPC 34391/2007 7 NARC, certified by the State Government itself in this case. But, while forwarding the recommendation the State Government merely observed that the petitioner has not produced any additional acceptable documentary evidence to recommend his case to Government of India which was rather unnecessary in the light of the earlier two judgments and now this is relied upon by the Central Government as one of the reasons to reject the application. The present order passed by the Central Government, Ext.P17, has therefore to be analysed in the above factual setting. 8. This is a case where no primary evidence is available. It is in those circumstances, as provided under the relevant scheme the petitioner has produced the Personal Knowledge Certificate from Shri E. Moidu Moulavi, Shri M.S. Kumaran and Shri P.M. Thomas. In Ext.P4 judgment, it was clearly stated that the reasons for rejection of the certificates from Shri E. Moidu Moulavi and Shri M.S. Kumaran are not correct. Therefore, the first respondent could not have pointed out the same reason to reject the application. Presently, the reason stated is that the certifiers have not furnished any record/evidence of their own sufferings. This is patently wrong. Shri E. Moidu Moulavi, Ex.M.P.'s certificate issued in favour of the petitioner was directed to be accepted by this court in Ext.P4 judgment. Going by the Scheme, when primary evidence is not available, secondary WPC 34391/2007 8 evidence could be accepted. There was no dispute regarding the eligibility of the certifiers or about their jail terms before this court when this court considered those certificates in Ext.P4. At that time, the only objection was that Shri E. Moidu Moulavi does not belong to Thrissur and this reason was also rejected by this court. Ultimately, this court held the view that this court is satisfied that the certificates of Shri E. Moidu Moulavi and Shri M.S. Kumaran can be accepted as “proof” of petitioner's claim. Therefore, the first respondent cannot go back on those certificates and reject them as now done. Thus, there is clear acceptable secondary evidence in this case, to sanction the pension. 9. Then, the other reason is that the petitioner has not furnished a valid NARC from the State Government. This is totally incorrect, in view of the clear certification in Ext.P14 while recommending his case as already noted above. The certification shows that all concerned authorities who could have relevant records in respect of the claim of the petitioner have been consulted and it is confirmed that the official records of the relevant time are not available. This satisfies the requirement of a valid NARC, since the scheme itself shows that the NARC to be issued by the State Government should be in that manner. In this case the petitioner had produced the NARC issued by the Circle Inspector of Police, Thrissur East WPC 34391/2007 9 (Ext.P7) which was forwarded by the District Collector along with Ext.P9. Later, it was forwarded by the State Government as per Ext.P11. Further, going by the judgments of this court, when the application has been recommended by the State Government, it cannot be rejected on the ground that NARC was not given by the State Government. In the judgment in V.R. Anthappan v. Union of India (O.P.No.7749/2000) it was held that “after recommendation from State Government it cannot be rejected mainly on the ground that NARC was not given by the State Government.” The said judgment stands confirmed in W.A. No.571/2001. Therefore, I hold that in the light of Ext.P14, there is a valid NARC. 10. In Ext.P17, it has also been held that the recommendation of the State Government is negative. What is mentioned in Ext.P14 is only that the petitioner has not produced any additional acceptable evidence to recommend his case to the Government of India. That does not show that the certificates already forwarded and which have been found acceptable by this court in Ext.P4 judgment, cannot be acted upon. The State Government is also a party to Ext.P4 judgment, being the second respondent. Therefore, they cannot refuse to forward a valid recommendation as the said judgment is binding on them also. Hence, the view taken that the recommendation is negative, is not correct. WPC 34391/2007 10 11. As held by the Apex Court in Gurdial Singh v. Union of India and others {(2001) 8 SCC 8}, a technical approach cannot be taken by the authorities concerned. It was held in the above said decision that “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.” It was further held in para 7 that the “the standard of proof required in such cases is not such standard which is required in a criminal 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. .................. 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.” 12. Judged in the light of the above principles, I am of the view that WPC 34391/2007 11 the authorities have not approached the issue in the correct perspective, especially in the light of Exts.P4 and P12 judgments which have become final. At the risk of repetition, it may further be mentioned that the certificates of Shri E. Moidu Moulavi and Shri M.S. Kumaran were found acceptable as proof of petitioner's claim by this court in Ext.P4 judgment and there was a direction to pass orders accordingly. Therefore, the claim for pension ought to have been allowed. All other objections regarding the validity of NARC are also not genuine, as found already. 13. Therefore, Ext.P17 is quashed. It is declared that the petitioner is entitled for grant of pension under the SSS Pension Scheme. There will be a direction to the respondents to sanction freedom fighters' pension to the petitioner within a period of six weeks from the date of receipt of a copy of this judgment. Arrears of pension from the date of receipt of application shall also be disbursed to the petitioner within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/