IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 WP(C).No. 429 of 2006(A) ----------------------------------- PETITIONER: ------------------- MARIYAMMA ABRAHAM, AGED 78 YEARS, W/O.LATE KOCHU KUNJU @ ICCA ABRAHAM, (LATE FREEDOM FIGHTER) THOMPILATHU HOUSE, THITTAMEL, CHENGANNUR P.O. ALAPPUZHA DIST. BY ADVS. MR.S.HARIKRISHNAN, MR.C. UNNIKRISHNAN (KOLLAM). RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, IST FLOOR, LOK NAYAK BHAVAN, NEW DELHI 110 003. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL ADMINISTRATION, (FREEDOM FIGHTERS PENSION), DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENRAL (A&E) KERALA, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA. 5. THE SUB TREASURY OFFICER, CHENGANNUR. R1 BY MR. P. PARAMESWARAN NAIR, ASST. S.G, R2 TO R5 BY GOVT. PLEADER MR. T.K. VIPIN DAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.429/2006-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. 19/3792/73FF VIII- DTD. 15/11/1975. EXT.P.2: COPY OF THE RELEVANT PAGES OF THE PPO AND THE PENSION BOOK IN RESPECT OF THE SSS PENSION RECEIPT. EXT.P.3: COPY OF THE DEATH CERTIFICATE DTD. 17/10/2001. EXT.P.4: COPY OF THE ORDER NO.R.DIS.6218/83/N4 DTD. 21/03/1983. EXT.P.5: COPY OF THE COMMUNICATION NO. H3-12196/90 DT. 23/04/1990. EXT.P.6: COPY OF THE CIRCULAR NO. PA 8/F/FF/94-95/780 DT. 09/11/1994 ISSUED. EXT.P.7: COPY OF THE ATTESTED AFFIDAVIT DTD. 27/04/2005. EXT.P.8: COPY OF THE COMMUNICATION NO. A5/94/05 DTD. 16/05/2005. EXT.P.9: COPY OF THE MEMORANDUM. EXT.P.10 & P.10.A: COPY OF THE REPRESENTATION TO THE PRESIDENT OF INDIA AS WELL AS THE ACKNOWLEDGEMENT. EXT.P.11: COPY OF THE SECOND FAMILY PENSION APPLICATION IN PERORMA. EXT.P.12: NIL. EXT.P.13: COPY OF THE ORDER NO. 19/3791/73-FF (SZ) DT. 14/07/1984 ISSUED BY R.1. EXT.P.14: COPY OF THE LETTER NO. 19/3791/73-FF(SZ) DT. 14/07/1984 ISSUED BY R.1. EXT.P.15: COPY OF THE RELEVANT PAGES OF THE BOAVE PUBLICATION ALONG WITH THE RELEVANT ANNEXURE C. RESPONDENTS' ANNEXURES: ANNEXURE RI: COPY OF THE LETTER DTD. 28/06/85. ANNEXURE RII: COPY OF THE LETTER DT 28/06/85. //TRUE COPY// P.A. TO JUDGE. Prv. V.K.MOHANAN, J. --------------------------------------------- W.P(C).No. 429 of 2006 - A --------------------------------------------- Dated this the 7th day of July, 2009 J U D G M E N T Petitioner is the widow of late Kochu Kunju @ Icca Abraham, Thittamel, Chengannur, who was the recipient of the Central Freedom Fighters' Pension under the Swathanthrata Sainik Samman Pension Scheme, 1980 with effect from 15.8.1972 as per the Order No.19/3791/73FF VIII dated 15.11.1975, a copy of which is produced as Ext.P1. According to the petitioner, apart from Ext.P1, the petitioner's husband has also been eligible for getting the State Freedom Fighters' Pension with effect from 1.4.1971 vide order No.R.Dis.3709/72 dated 27.6.73 issued by the fourth respondent- District Collector. 2. Thus, according to the petitioner, her late husband was conferred with both the Central and State Freedom Fighters' Pension in commemoration of his active involvement in the “Chengannur Freedom Struggle” which is recognised as part of the WP(C) NO.429 of 2006 :-2-: National Freedom Struggle. Thus, petitioner's late husband has started drawing Central Freedom Fighters' Pension @ Rs.150/- vide Pension Payment Order No.FF 1955 drawn on the 5th respondent Treasury with effect from August 1972 till 2.7.1982. The petitioner's husband expired on 8.7.1982 leaving behind the petitioner and her children. It is the specific case of the petitioner that when her husband expired in July,1982, the petitioner represented before the 4th respondent for continuance of the State Freedom Fighters' Pension under Rule 10 of the Kerala Freedom Fighters' Pension Rules,1971 (for short 'K.F.F.P.Rules') and accordingly, the District Collector granted sanction for payment of family pension of Rs.150/- to the petitioner with effect from 9.7.1982 against Account No.APY-174 C till death or remarriage, whichever is earlier. Ext.P4 is that order. 3. Thus, the case of the petitioner is that while the State Government continued to pay the State Freedom Fighters Pension to the petitioner, after the death of her husband, the Central Government, all of a sudden, WP(C) NO.429 of 2006 :-3-: stopped the payment of Central Freedom Fighters' Family Pension to the petitioner upon the death of her husband on 8.7.1982. Subsequently, the petitioner has preferred second family pension application before the fifth respondent on 22.12.2005. Ext.P11 is the second application filed by the petitioner before the fifth respondent which was already forwarded to the first respondent through second and fourth respondents. But, so far, no action is taken on such request. 4. In support of the contentions and prayers in the writ petition, the petitioner very much relied upon the decisions of the Supreme Court reported in Mukund Lal Bhandari v. Union of India [1993 Supp (3) SCC 2], Gurdial Singh v. Union of India [(2001) 8 SCC 8] as well as Sobha v. Union of India [2005(2) ILR 493]. 5. While the original petition was pending, the petitioner has filed I.A.No.11546 of 2007 to amend the writ petition which was allowed by this court by order dated 21.8.2007. As per the amended writ petition, the petitioner also prays for the issuance of a writ of WP(C) NO.429 of 2006 :-4-: certiorari quashing Exts.P13 and P14. Further prayer added is to issue a writ of mandamus or any other appropriate writ or direction declaring that the petitioner-widow is entitled for the Family Pension under the S.S.S.Pension Scheme along with the arrears of family pension due to her with retrospective effect from 1.8.1982 till actual disbursement along with interest at 12% p.a. Ext.P13 is the proceedings issued by the Under Secretary to Government of India to the Accountant General, Government of Kerala, Trivandrum informing that on review, the President is pleased to cancel the pension of Rs.150/- per month with effect from the date it was not drawn by the late freedom fighter. It is further informed that no recovery is to be effected from the widow. So, as per Ext.P13, the reason for cancellation or review of the order is that no pension was drawn by the freedom fighter. Ext.P14 is the communication received by the petitioner from the Government of India by which the petitioner was informed that it is not possible to transfer the family WP(C) NO.429 of 2006 :-5-: pension in her favour as the pension had been sanctioned to late Kochu Kunju @ Icca Abraham on mistaken ground and the same has been cancelled. Learned counsel pointed out that the reasons stated in Exts.P13 and P14 are divergent and conflicting, which is sufficient to hold that the pension is being denied arbitrarily. 6. In the light of the above facts and circumstances, I am of the view that this writ petition can be disposed of with a direction to the first respondent to take up Ext.P11 and dispose of the same on merit. On a perusal of Exts.P13 and P14, it appears that Exts.P13 and P14 are issued without hearing the petitioner and the arbitrariness of the same are borne out from the records itself as the reasons are divergent in nature. Therefore, Exts.P13 and P14 will not sustain due to its arbitrariness and are liable to be quashed. Accordingly, this writ petition is disposed of directing the first respondent to take up Ext.P11 application filed by the petitioner for S.S.S.Family WP(C) NO.429 of 2006 :-6-: Pension, especially, in the light of the fact that the Central Government has already accorded sanction as per Ext.P1 to the petitioner's husband and the State Government has also extended the benefit to the petitioner after the death of her husband and the first respondent is further directed to pass a speaking order and the same shall be done within three months from the date of receipt of a copy of this judgment which will be produced by the petitioner. Since Exts.P13 and P14 will not sustain in the eye of law, the same are quashed. The writ petition is disposed of as above. V.K.Mohanan, Judge MBS/ WP(C) NO.429 of 2006 :-7-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. OF 200 -------------------------------------------- J U D G M E N T WP(C) NO.429 of 2006 :-8-: DATED: -6-2009 WP(C) NO.429 of 2006 :-9-: