IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 12585 of 2010(W) ---------------------------------------- PETITIONER(S): ------------------------ MANNIODATH LAKSHMI AMMA, W/O.MELEDATHU KUNHAMBU NAIR, CHUZHALI AMSOM AND POST, NIDUVALOOR DESOM, SREEKANDAPURAM, KANNUR DISTRICT. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): -------------------------- 1. UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY TO GOVERNMENT,MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION,LOK NAYAK BHAVAN, NEW DELHI. 2. THE UNDER SECRETARY TO GOVERNMENT OF INDIA,MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION,LOK NAYAK BHAVAN, NEW DELHI. 3. THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA,GENERAL ADMINISTRATION (FFPB), DEPARTRMENT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.SUNNY XAVIER, CGC R3 BY GOVT. PLEADER SRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12585/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE UNDER TRIAL REGISTER MAINTAINED BY THE SUPERINTENDENT, CENTRAL JAIL, KANNUR. P2:- COPY OF THE PROCEEDING NO.6/1/97-FF(P) DTD. 20.1.1998 ISSUED BY THE GOVERNMENT OF INDIA. P3:- COPY OF THE APLICATIION SUBMITTED BY THE PETITIONER DTD. 5.5.1998. P4:- COPY OF THE PROCEEDING CENTRAL GOVERNMENT. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 12585 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd day of July, 2010. J U D G M E N T The petitioner is the widow of a freedom fighter, namely, Sri. Meledathu Kunhambu Nair. Sri. Meledathu Kunhambu Nair was arrested on 16-1-1947 in a criminal case connected with the freedom struggle, and remanded to jail. He was in jail as an under-trial prisoner from 16-1-1947 till acquittal on 29-10-1947. His jail suffering was in connection with the Kavumbhai struggle, which is recognized as a freedom struggle. His jail suffering is proved by Ext. P1 extract from the under-trial prisoners' register maintained by the Superintendent of Central Prison, Kannur. With the help of the said document, the petitioner filed an application for pension under the Swatantrata Sainik Samman Pension Scheme. Although, the State Government recommended the petitioners' claim for pension under the SSS Pension Scheme by Ext. P4 order, the 2nd respondent rejected the claim by the following order: “I am directed to refer to Govt. of Kerala's letter No. 49250/FFP A2/99-GAD, dated 8.9.99 recommending your case for grant of pension of account of participation of your late husband in Kavumbayi Struggle in case No. 147,148,332 and 307 IPC, supported by copy of the extracts of the Register of under trial prisoners purported to have been issued by Superintendent, Central Jail, Kannur. 2. The matter has been considered in the Ministry keeping in view the provisions of the scheme, instructions issued by the Ministry on the subject from time to time and state Govt. letter dated 8.9.99 and it is regretted that it is not possible to grant pension to you due to the following reasons:- A perusal of the extract of under-trial prisoners issued by Central Prison, Kannur – has revealed that your late husband was acquitted and discharged by the session court, North Malabar. As per the instructions on the subject it has been inter alia stated that only in case of a trial ending in conviction, the under-trial period will be counted towards the imprisonment suffered. Since your husband's under-trial period led to his acquittal, hence not W.P.C. No. 12585/2010 -: 2 :- eligible for grant of pension under the rule.” The petitioner is challenging Ext. P 4 order. 2. According to the petitioner, for becoming eligible for pension, it is not mandatory that detention of the freedom fighter should end in conviction. What is necessary is only six months' imprisonment and nothing more. The petitioner relies on the decision of the Full Bench of this Court in Union of India v. Peter Devassia, 2003 (1) KLT 467 (FB). 3. No counter affidavit has been filed by the respondents. I have heard the counsel for the petitioner, Central Government Counsel appearing for respondents 1 and 2 and the Government Pleader appearing for the 3rd respondent. 4. I have time and again reminded the persons sitting in cosy chairs in the Ministry at Delhi that while dealing with applications for freedom fighters' pension, they should remember that they are able to sit in their chair and pass orders like the one impugned in this writ petition only because of the sacrifice of persons like the freedom fighter involved in this writ petition. I had also reminded them that patriotism should inform their action while dealing with such applications. In one judgment, I even commented that patriotism should not only be there when India plays cricket but also when the claims for pension of freedom fighters are considered. I think that those advices have fallen on deaf ears because repeatedly, I come across the callous and indifferent way in which such applications are being disposed of. The respondents must realise that freedom fighters are not beggars who seek alms. By framing the scheme for pension, and giving freedom fighter's pension, more than giving some financial support to the freedom fighters in their old age, we are honouring ourselves by recognizing the sacrifice they have made for the country. From the indifferent way the respondents deal with such W.P.C. No. 12585/2010 -: 3 :- claims of freedom fighters, I am constrained to comment that the respondents do not have either the patriotism or the self respect to realise the purpose and importance of the implementation of the scheme and simply reject such claims with indifferent orders which are at times even against judgments of the courts upholding eligibility of such freedom fighters for pension. This case is a classic example of such attitude of the powers that be. 5. As early as on 27-1-2003, a Full Bench of this Court has held that imprisonment in jail as under-trial prisoner can be counted for computing six months' period of imprisonment for getting freedom fighters' pension and the trial need not end in conviction. Ext. P4 is not even dated. Certainly, the same was passed long after the above said decision. The very fact that Ext. P4 has been passed against the Full Bench decision of this Court, which has become final, further shows the lack of respect of those who sit in the ministry for judgments of this Court. This also is a tendency that I have seen in the matter of passing orders under the SSS Pension Scheme. Even where this Court categorically finds that a freedom fighter is entitled pension, orders are being passed even thereafter rejecting the claim for pension. Such kind of attitude of respondents 1 and 2 cannot be pardoned by any person who has still patriotism and self respect left in him. The same should be condemned in no unmistakable terms Hence, I am satisfied that such kind of attitude has to be curbed at any cost. Therefore, Ext. P4 is totally unsustainable. Accordingly, the same is quashed. It is declared that the petitioner is entitled to pension under the Swatanthratha Sainik Samman Pension Scheme in respect of the sufferings of her husband Sri. Meledathu Kunhambu Nair with effect from 5-5-1998, which is the date of application for pension. Arrears shall be paid within one month from the date of receipt of a copy of this judgment. Arrears shall carry interest at the rate of 9% p.a. The petitioner is also entitled to costs, which I W.P.C. No. 12585/2010 -: 4 :- quantify at Rs. 25,000/-, which will also be paid along with the arrears. The interest and arrears shall be recovered from the person who passed Ext. P4 order disregarding the Full Bench decision of this Court, from his salary. I was also inclined to direct the 1st respondent to initiate disciplinary proceedings against the person who passed Ext. P4 order, but exercising restraint, I refrain from doing so. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/