IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 WP(C).No. 26686 of 2004(B) --------------------------------------- PETITIONER: ------------------- P.BHASKARAN NAIR, JOTHY NIVAS, PUNNAKULAM, KOTTUKAL P.O., VIA.BALARAMAPURAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR. RESPONDENTS: ----------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (FFP B) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN FOR R1 & R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26686/2004-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY A VERY COMPETENT PERSON. EXT.P.2: COPY OF THE REPRESENTATION DTD. 23/06/2001 SUBMITTED BY THE PETITIONER BEFORE THIS HONOURABLE COURT. EXT.P.3: COPY OF THE RULES GOVERNING STATE FREEDOM FIGHTERS PENSION. EXT.P.4: COPY OF THE AFFIDAVIT SWORN TO BY THE PETITIONER BEFORE THE JUDICIAL 1ST CLASS MAGISTRATE'S COURT. EXT.P.5: COPY OF THE APPLICATION FILED BY THE PETITIONER. EXT.P.6: COPY OF THE ORDER NO. 26542/FFPB1/2000/GAD DTD. 20/12/2002. EXT.P.7: COPY OF THE RELEVANT EXTRACT OF THE CONVICT REGISTER OF CENTRAL PRISON, THIRUVANANTHAPURAM. EXT.P.8: COPY OF THE JUDGMENT DTD. 07/04/2004 IN O.P. NO. 10137/2003 OF THIS HONOURABLE COURT. EXT.P.9: COPY OF THE LETTER NO. G2.21861/2003 DTD. 07/06/2004 OF THE R.2. EXT.P.10: COPY OF THE FORWARDING LETTER DTD. 11/06/2004. EXT.P.11: COPY OF THE ORDER NO. 39121/FFP.B1/2004/GAD DTD. 26/08/2004 OF THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.26686 of 2004-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 6th October, 2008. JUDGMENT Aggrieved by the rejection of the application for grant of pension under the Kerala Freedom Fighters Pension Rules, the petitioner has approached this court. The claim of the petitioner is on the basis of the participation in Quit India Movement and the underground sufferings for more than one year between 8.8.1942 to 15.8.1943. Ext.P1 is the Personal Knowledge Certificate issued by Shri A. Jamal Labba, a prominent freedom fighter and recipient of Central Freedom Fighters Pension and Thamrapathra holder. He has certified that the petitioner is a bonafide freedom fighter and who remained underground for more than one year for the period from 8.8.1942 to 15.8.1943 and he was underground out of State. The certificate shows that he was ordered out of the District by the District Magistrate's Court, Trivandrum in C.C.No.66/42 of 1942. The claim was earlier rejected as per Ext.P6. The rejection was mainly on the ground that the copy of the warrant of arrest or jail records have not been produced and the jail records of the certifier have also not been produced. Ext.P7 is the true extract of the convict register of Central Prison, WPC 26684/2004 -2- Trivandrum in respect of the certifier, Shri Jamal Labba. Challenging Ext.P6, the petitioner filed O.P.No.10137/2003 which was disposed of by Ext.P8 judgment. Thereafter, again by Ext.P11 the application was rejected. 2. The State Government has filed a counter affidavit and the petitioner has filed a reply affidavit also. In para 4 of the counter affidavit it is stated that the District Advisory Committee has recommended the pension. In support of the reason for rejection, it is averred in para 5 that the personal knowledge certificate issued by Shri Jamal Labba does not satisfy all the requirements in the Kerala Freedom Fighters Pension Rules. Again, in para 6, it is stated that the petitioner has not produced the jail records showing that Shri Jamal Labba had suffered imprisonment for not less than 2 years. Thus, mainly it is rejected for want of documentary evidence. In para 9, another reason pointed out is that in the personal knowledge certificate issued by Shri Jamal Labba, apart from stating that the petitioner ordered to be externed for more than one year from 8.8.1942 to 15.8.1943, it is indicated that he remained underground for more than one year, as the petitioner was a proclaimed offender or one on whom an award for arrest was proclaimed and one for whose detention, orders were issued but evaded arrest. It is therefore assumed that it is not clear as to how the petitioner has simultaneously undergone these sufferings. 3. Learned counsel for the petitioner submitted that the reasons stated WPC 26684/2004 -3- for rejecting the application are not sound and genuine. Herein, the competent certifier is Shri Jamal Labba who has issued Ext.P1. It is clearly certified therein about the underground sufferings of the petitioner. What is pointed out by the respondents in the counter affidavit is that he has simultaneously undergone various sufferings. Learned counsel submits that it is only because of the fact that the certifier had not struck off other columns while certifying under the columns (a) and (b). The said argument appears to be correct. This ought not have been a factor which could have weighed with the authority to reject the application when he has produced Ext.P1 as well as Ext.P7 which is the true copy of the jail extract of the certifier. In fact, in Ext.P8 judgment there is clear reference about Ext.P7. It has been held therein that obviously the Government did not have the advantage of seeing Ext.P7. In Ext.P11 order now issued also, in internal page 2 last paragraph it is clearly stated that he has produced the personal knowledge certificate issued by Shri Jamal Labba and he has also produced the extract of convict register of Central Prison, Thiruvananthapuram related to Shri Labba (Ext.P7). Therefore, it is not understandable as to why the authority has chosen to reject those certificates for flimsy reasons as pointed out earlier. This is a case where the Advisory Committee has recommended his application as evident from para 4 of the counter affidavit. As per the scheme, Ext.P3, in the absence of official records, the personal WPC 26684/2004 -4- knowledge certificate along with the jail records of the certifier is sufficient. Therefore, the reason shown while rejecting the application on the ground that he has not produced the documentary evidence from official records like warrant of arrest, is also not correct. For importing the said reason in Ext.P11 and in the counter affidavit, the State Government is relying upon a circular dated 31.12.1993 issued by them to the effect that applications received after 31.3.1994 will be considered only on production of documentary evidence. It is well settled that a circular cannot go against the general purport of an Act, Rule, Scheme, etc. Therefore, the circular that is relied upon cannot whittle down the effect of Ext.P3 scheme. If that be so, no reliance can be place on the said circular to reject the application on the ground that original records like warrant of arrest has not been produced by the petitioner. It is clear that in the absence of such certificates, the duly issued certificates from competent certifiers is sufficient. Apart from that, herein the Advisory Committee has also recommended his application. 4. In view of the above, it is clear that the reasons now attributed for rejecting the application are not sound. The approach that is made is too technical one. As held by the Apex Court in Gurdial Singh v. Union of India and others {(2001) 8 SCC 8}, the standard of proof required in such cases is not like one in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. The relevant paragraph wherein the WPC 26684/2004 -5- said dictum is laid down, is extracted below: “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.” Apart from that, the Apex Court has further held in Mukundlal Bhandari v. Union of India (AIR 1993 SC 2127), that “the date prescribed in any past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time-limit.” For this reason also, WPC 26684/2004 -6- the approach made by the authorities are not correct. 5. Therefore, I quash Ext.P11. The matter will be reconsidered by the first respondent in the light of the specific finding made by me above. The application will be finally disposed of within a period of two months from the date of receipt of a copy of this judgment, in the light of Exts.P1, P7 and also the report of the District Advisory Committee and other documents, if any, produced by the petitioner. The writ petition is disposed of in the above terms. No costs. (T.R. Ramachandran Nair, Judge.) kav/