IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 37624 of 2008(D) --------------------------------------- PETITIONER: ------------------- C.K.KARUNAKARAN, AGED 87, KALAPPURAKKAL HOUSE, PERUMTHURUTHU, MUHAMMA P.O., CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.J.OM PRAKASH. RESPONDENTS: ------------------------ 1. THE UNION OF INDIA,REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, KHAN MARKET, NEW DELHI. 2. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SSECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL ADIMINISTRATION, SECRETARIATE, THIRUVANANTHAPURAM. R1 BY SRI. T.P.M. IBRAHIM KHAN, ASST. S.G, SRI.MANOJ RAMASWAMY, ADDL.CGSC, R2 BY GOVT. PLEADER SRI. V. MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.37624/2008-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION OF THE PETITIONER DTD. 10/06/1998. EXT.P.2: COPY OF THE STATE PENSION ORDER ISSUED TO THE PETITIONER DTD. 13/01/1982 BY THE DISTRICT COLLECTOR, ALAPPUZHA. EXT.P.3: COPY OF THE APPLICATION AND THE ORDER IN CASE NO. P.E.8/1122 OF THE C.J.M. COURT, ALAPPUZHA DTD. 20/06/81. EXT.P.4: COPY OF THE REPRESENTATION OF THE PETITIONER DTD. 06/08/2005. EXT.P.5: COPY OF THE CO-PRISONER'S CERTIFICATE ISSUED BY SRI. P.A. SOLOMON EX. M.P. DTD. 03/07/2005. EXT.P.6: COPY OF THE LETTER OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA DTD. 28/01/2004. EXT.P.7: COPY OF THE ORDER OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA DTD. 03/02/2005. EXT.P.8: COPY OF THE ORDER ISSUED BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA DTD. 26/07/2006. EXT.P.9: COPY OF THE LETTER OF THE UNDER SECRETARY TO GOVT. OF INDIA DTD. 27/08/98. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.37624 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2010 J U D G M E N T The petitioner is a freedom fighter. He claims to have participated in the Punnapra-Vayalar struggle which is accepted as part of the Indian freedom movement, consequent to which, he was arrested as an accused in P.E. 8/1122 (M.E.) before the Special Magistrate's Court, Alappuzha and lodged in Sub Jail, Alappuzha for the period from 11.10.1122 ME to 13.05.1123 M.E. corresponding to May 1947 to December 1947. For the said jail sufferings, the petitioner submitted application for pension under the Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980 (for short “the Scheme”) producing along with his application Ext.P5 Co-Prisoner's Certificate from Ex-Member of Parliament Sri. P.A. Solomon and Ext.P3 Non availability of Records Certificate (NARC). The State Government did not recommend the petitioner's case for pension and by Ext.P8 order the application of the W.P.(C)No.37624 of 2008 -2- petitioner was rejected by the 1st respondent stating the following reasons: “5. After examination of the claim, it is found that you are not eligible for grant of Samman pension due to the following shortcomings/discrepancies:- (i) You have not furnished requisite, acceptable, record-based primary evidence in support of your claimed imprisonment suffering (as indicated in para 4 above). (ii) You have not furnished a valid NARC from the State Government (i.e., the competent authority) containing all the ingredients prescribed therefor (as indicated in para 4 above). (iii) In the absence of a valid NARC, secondary evidence i.e., CPC from Shri P.A. Solomon Ext-M.P, regarding jail suffering cannot be considered and is not acceptable (as indicated in para 4 above). Therefore, requisite, acceptable secondary evidence is also not forthcoming (as indicated in para 4 above). (iv) The Personal Knowledge Certificates from S/Shri Ittiyathi Vasudevan, Shri H.K. Chakrapani and C.S. Ramakrishnan regarding underground suffering are of no relevance since you have not claimed underground suffering. (v) The State Government, vide its letter no.101674/FFP.A2/2005/GAD dated 19.1.2006 has inter alia stated as follows - “...In support of the claim, he has not produced any documentary evidence. He has produced Personal Knowledge Certificate from Shri Ittiyathi Vasudevan, Shri H.K. Chakrapani and C.S. Ramakrishnan. He has not produced proper Non availability of Records Certificate. The District Collector, Alappuzha has given him direction to produce evidence from official records but he has not produced any evidence. W.P.(C)No.37624 of 2008 -3- Later the petitioner had submitted a representation, enclosing a certificate of Shri P.A. Solomon Ex-M.P. It has also been got enquired through the District Collector, Alappuzha. The District Collector has reported that the petitioner has not produced any acceptable Non availability of Records Certificate and other documents and hence the case cannot be recommended.” The State Government's recommendation is negative. 6. In view of the above, your claim does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman pension Scheme, 1980. 7. It is, therefore, regretted that you are not eligible for grant of Samman pension under the Swatantrata Sainik Samman Pension Scheme, 1980. Hence, your claim is, hereby rejected.” 2. The petitioner is challenging Ext.P8 order in this writ petition. According to the petitioner, the only reason mentioned in Ext.P8 for rejecting the application for pension submitted by the petitioner is that the NARC produced by the petitioner is not a valid NARC and therefore on the basis of the co-prisoner's certificate from Sri. P.A.Solomon, the pension cannot be sanctioned. Petitioner submits that, the scheme does not postulate any other NARC other than Ext.P3, which is the certificate from the concerned magistrate's court to the effect that the W.P.(C)No.37624 of 2008 -4- records of the year 1122 have been destroyed. Therefore the respondents could not have doubted either Ext.P3 or the co-prisoner's certificate (Ext.P5) is the contention raised by the petitioner. Petitioner therefore seeks the following reliefs: “i. issue a writ of certiorari calling for the records relating to Ext.P8 and quash the same. ii. issue a writ of Mandamus directing the 2nd respondent to send the verification cum entitlement report along with a positive recommendation with respect to the Ext.P1 application of the petitioner to the first respondent immediately. iii. Issue a writ of Mandamus directing the first respondent to dispose of the Ext.P1 application and grant pension to the petitioner. iv. direct the respondents to pay cost to the petitioner.” 3. A counter affidavit is filed on behalf of the 1st respondent which is prepared, as usual in cases relating to freedom fighter's pension cases, by the Ministry at Delhi and forwarded to the Central Government Counsel, who was simply filed it in the court. It conveys nothing regarding the case and, in any event, does not disprove the contentions of the petitioner. It details the various provisions of the scheme and reiterates that the NARC W.P.(C)No.37624 of 2008 -5- produced by the petitioner is not valid. It does not state as to why Ext.P5 co-prisoner's certificate is not acceptable. 4. I have considered the rival contentions in detail. As I have already mentioned, the only reason for rejecting the claim of the petitioner for pension under the SSS Pension Scheme is that, the NARC produced by the petitioner is not valid. Ext.P3 is the NARC produced by the petitioner. It is the order of the Chief Judicial Magistrate's Court, Alappuzha rejecting the application for documents relating to criminal case No.P.E. 8/1122 (M.E.) on the ground that the records of the year 1122 have already been destroyed. Petitioner is expected to prove that he was an accused in PE 8/1122 and lodged in jail pursuant to arrest in that criminal case. In Ext.P5 Co-Prisoner's Certificate, it is specifically stated thus: “4. I hereby certify that Sri. C.K. Karunakaran, Kalappurakkal House, S/o. Kochupillai, Perumthuruthu, Muhamma P.O. Cherthala, Alappuzha District is a bonafide freedom fighter who was also imprisoned on account of his participation in the Punnapra Vayalar Freedom Movement during the freedom struggle and was tried by the court of Special Magistrate, Alappuzha in the same year and was lodged W.P.(C)No.37624 of 2008 -6- in the same jail alongwith me during the period from 11-10-1122 ME to 13-5-1123 (May 1947 to December 1947) in case No.P.E.8/1122.” So if at all any records are available in respect of that case it can only be before the Chief Juridical Magistrate's Court. That court has stated that, the records of the year 1122 have been destroyed. I am of opinion that, that is a valid NARC in respect of P.E No.8/1122. Further more, this court and the Supreme Court have time and again held that wherever records are to be produced by freedom fighters from Government offices it is for the Government to see that certificates or NARCs are obtained from those Government offices by the Government themselves. Petitioner has evidently done the only thing what the petitioner could do in the circumstances, ie. to obtain a certificate from the concerned magistrate's court to the effect that the records of the case have been destroyed. Therefore, I am not satisfied that, the reason mentioned in Ext.P8 to reject the petitioner's application for pension is a valid one. In the counter affidavit filed by the W.P.(C)No.37624 of 2008 -7- 1st respondent there is no reason mentioned as to why Ext.P5 Co-Prisoner's Certificate of ex-member of parliament Sri. P.A. Solomon cannot be accepted. That being so, I hold that Ext.P5 Co-prisoner's Certificate is sufficient to prove to the petitioners' case for pension in accordance with the scheme, coupled with the NARC. 5. In view of my above findings, the petitioner has proved his case for pension under the scheme. Accordingly Ext.P8 is quashed. The 1st respondent is directed to pay pension to the petitioner under the scheme. The arrears shall be paid with effect from 27.08.1998, which is the date of Ext.P9 communication from the 1st respondent which would go to show that at least on that day the application of the petitioner was in the files of the 1st respondent, within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/