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. 28934 of 2005(T) --------------------------------------- PETITIONER: ------------------ K.K.SUKUMARAN, KALAMBOOL HOUSE, MANNANCHERRY.P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.K.K.SATHEESH RESPONDENTS: ---------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.K.M.JAMALUDHEEN, CGC FOR R1 GOVERNMENT PLEADER MATHEW GEORGE VADAKKAL FOR 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.28934/2005 APPENDIX PETITIONERS EXHIBITS. P1:- COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA VIDE NO.N4-41356/80 (1) DT. 26.5.1981 GRANTING STATE PENSION TO THE PETITIONER ALONGWITH 3 OTHER PERSONS. P2:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR THE GRANT OF SSS PENSION DT. 24.4.1998. P3:- COPY OF THE PKC ISSUED BY SRI. KUNJAN SUKUMARAN DT. 10.4.1998. P4:- COPY OF THE LETTER NO.H3.11196/03/D.DIS. DT. 9.5.03 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA. P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DT. 10.8.05. P6:- COPY OF THE NARC ISUED BY THE SUPDT. OF POLICE, ALAPPUZHA DT. 2.8.05. P7:- COPY OF THE NARC ISSUED BY THE CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA IN CASE NO.P.E. 7/1122 ME. DT. NIL. P8:- COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER DULY ATTESTED DT. 20.7.2005 BY THE JUDICIAL FIRST CLASS MAGISTRATE II, ALAPPUZHA. P9:- COPY OF THE PKC ISSUED BY SRI.H.K. CHAKRAPANI DT. 19.7.05. P10:- COPY OF THE ORDER OF SANCTION OF SRI.H.K.CHAKRAPANI ISSUED BY THE IST RESPONDENT VIDE NO.119/PVS/104/99-FF(SZ) DT. 18.6.03. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.28934/2005-T - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2008. JUDGMENT In this case, the petitioner is an applicant for grant of Swatantrata Sainik Samman Pension. His claim is based on his participation in the Freedom Struggle. It is stated that on account of his participation in the Punnapra-Vayalar Movement, warrant of arrest was issued against him in Case No.PE 7/1122 ME and in order to evade arrest, he had gone underground for a period of nine months 08/3/1122 ME to 7/12/1122 ME. He is getting pension under the State's Freedom Fighters' Pension Scheme as evidenced by Ext.P1. Ext.P2 is the application for grant of Swatantrata Sainik Samman Pension. Ext P3 is the Personal Knowledge Certificate issued by Sri.Kunjan Sukumaran, a prominent Freedom Fighter. By Ext.P4, he was informed that his application could not be considered for want of proper records. Thereafter, he submitted Ext.P5 representation along with copies of Non-Availability of Records Certificate issued by the Superintendent of Police, Alappuzha and the Chief Judicial W.P.(C).No.28934/2005 -:2:- Magistrate, Alappuzha in Case No.PE 7/1122 ME (Exts.P6 and P7). He had also produced along with Ext.P5 representation Personal Knowledge Certificate issued by Sri.H.K.Chakrapani, a prominent Freedom Fighter who had undergone imprisonment for a period of more than five years and who was also the recipient of S.S.S Pension and holder of Thamrapathra. Ext.P9 is the Personal Knowledge Certificate issued by Sri.H.K.Chakrapani, Exts.P10 and P11 being the copy of the order granting S.S.S Pension and the true copy of the jail records relating to the Certifier. Since these have not been considered, he has approached this Court again. 2. In the counter affidavit filed by the first respondent it is stated that a positive recommendation of the State Government is not there. In the counter affidavit filed by the second respondent it is mainly stated that he has not produced copies of the official records and, that the Personal Knowledge Certificate produced by him is not acceptable and the Non-Availability of Records Certificate has not been produced. It is stated that the Non-Availability of Records Certificates from the Chief Judicial Magistrate Court, Alappuzha and the Police Superintendent, Alappuzha are not acceptable as per the guidelines regarding Non-Availability of Records Certificates. It is contended that his application could not be recommended for lack of W.P.(C).No.28934/2005 -:3:- evidential documents as prescribed under the Swatantrata Sainik Samman Pension Rules. 3. The fact that the petitioner is a recipient of State's Freedom Fighters Pension for the participation in the very same struggle is not disputed. Therefore, his eligibility for the grant of pension has already been duly verified by the District Advisory Committee, Tahsildar and the District Collector at that time. Ext.P1 is the said order. After referring to the report of the District Advisory Committee it was found that the petitioner was eligible for grant of pension under the State Scheme. Therefore, the genuineness of the claim cannot be doubted by the authorities concerned. The question is only whether there is any deficiency in the certificates produced by the petitioner. Now, the Personal Knowledge Certificate that is produced along with Ext.P5 representation is that of Sri.H.K.Chakrapani (Ext.P9). Ext.P6 is the certificate issued by the Superintendent of Police, Alappuzha stating that no records are available in that office regarding the freedom movement and the participation of Sri.K.K.Sukumaran in the National Freedom Struggle. In Ext.P7 is an order passed by the Chief Judicial Magistrate Court, Alappuzha, on the copy application submitted by the petitioner stating that the records are not available in the court since the same has been destroyed. The Case number is shown as No.PE 7/1122 ME and what W.P.(C).No.28934/2005 -:4:- was sought is the attested copy of arrest warrant in Case No.PE 7/1122 ME. The learned counsel for the petitioner invited my attention to a decision of this Court in Sadananda Swamy v.Union of India [2004(2) KLT SN Pg.76 Case No.92] wherein the acceptability of similar certificates was considered by this Court. After referring to the various details, it was held as follows:- “What the relevant rule requires is that in the case of underground sufferings abscondence certificates from prominent veteran freedom fighters along with non- availability of record certificate from the concerned authorities ought to be produced. The insistence that the certifiers themselves should given meticulous details such as case number etc. is adopting too technical an attitude which is unwarranted. As already indicated NARC itself becomes necessary because of total absence of records. In such a situation taking a lenient view one can only go by the consistent pleading of the petitioner that the case relates to freedom movement.” 4. The requirement of a Non-Availability of Records Certificate is not explained in the counter affidavit and, as to why the two Non-Availability of Records Certificates cannot be relied upon is not explained by proper reasons. Therefore, the view taken is too W.P.(C).No.28934/2005 -:5:- technical. Both the authorities, namely, the Chief Judicial Magistrate, Alappuzha and the Superintendent of Police, Alappuzha are competent to certify as regards to the non-availability of the records relating to the case involving the petitioner. Apart from that there is no case that there is any defect in such a certificate and that a Non- Availability of Records Certificate can be obtained from a different office altogether. Therefore, the only certificates which the petitioner could produce is like the ones produced by him. There are no other methods prevalent here to get Non-Availability of Records Certificate from the State Government itself. For all these reasons, and in the light of the decision of this Court in Sadananda Swamy (supra), I find that the reasons stated for non recommending the application are not correct. The matter will have to be reconsidered by the State Government in the light of Ext.P5 representation, Exts.P7 and P8 Non-Availability of Records Certificates and Ext.P9 Personal Knowledge Certificate. Hence, Ext.P4 is quashed. There will be a direction to the State Government to reconsider the entire matter in the light of the above and forward a fresh verification-cum-entitlement report showing appropriate recommendation within a period of six weeks from the date of receipt of a copy of this judgment. On receipt of the same, the first respondent will pass final orders within a further period of two W.P.(C).No.28934/2005 -:6:- months thereafter. In the event of sanction of pension, the entitlement of the petitioner for payment of arrears from the date of the application i.e. 24-4-1998, will also be considered. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms