IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 WP(C).No. 16736 of 2006(P) -------------------------------------- PETITIONER(S): ---------------------- KAYI BHARGAVI, W/O.VALLAKKARAN KESAVAN, AGED 80, KULAKKATTU, KALAVAMKODAM.P.O, CHERTHALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): ------------------------ 1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. ADV. SRI.M.SAJJAD, ADDL.CGSC FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 16736/2006-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION OF THE PETITIONER'S HUSBAND DATED 14/05/98. EXT.P2: COPY OF THE ORDER OF THE DISTRCIT COLLECTOR, ALAPPUZHA GRANTING PENSION TO THE PETITIONER 05/08/1978. EXT.P3: COPY OF THE EXTRACT OF THE REGISTER ISSUED BY THE SUPERINTENDANT CENTRAL PRISON, TRIVANDRUM DATED NIL. EXT.P4: COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDANT, SUB JAIL, ALLEPPEY DATED 09/07/73. EXT.P5: COPY OF THE REPRESENTATION DATED 10/09/2005 OF THE PETITIONER. EXT.P6: COPY OF THE COPY APPLICATION AND THE ORDER IN CASE NO.P.E.6/1122 M.E. OF THE C.J.M COURT, ALAPPUZHA DATED 18/08/2005. EXT.P7: COPY OF THE COPY APPLICATION AND THE ORDER IN P.E.5/1122M.E. OF THE C.J.M COURT, ALAPPUZHA DATED 18/08/2005. EXT.P8: COPY OF THE CERTIFICATE OF P.A. SOLOMON EX.M.P. DATED 10/07/2005. EXT.P9: COPY OF THE ORDER DATED 20/04/2006 OF THE 2ND RESPONDENT. EXT.P10: COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 28/01/2004. EXT.P11: COPY OF THE ORDER THE 2ND RESPONDENT DATED 03/02/2005. EXT.P12: COPY OF THE REPORT OF THE TAHSILDAR, CHERTHALA, DATED NIL RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE RELEVANT PAGE OF SALIENT FEATURES OF SWATANTRATA SAINIK SAMMAN PENSION. EXT.R1(b): COPY OF THE ORDER NO.69268/FFP A2/GAD OF THE GOVERNMENT. //TRUE COPY// P.A. TO JUDGE Rs/ T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No.16736/2006-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of December, 2008. J U D G M E N T Aggrieved by Ext.P9 order rejecting the grant of Swatantrata Sainik Samman Pension, the petitioner who is the widow of Sri.Vallakkaran Kesavan has filed this writ petition. The basis of the claim is rested upon his conviction in two cases, namely, P.E.5/1122 and P.E.6/1122 M.E of the First Class Magistrate Court, Alappuzha in connection with the Punnapra- Vayalar Struggle. It is stated in the writ petition that the police arrested the late husband of the petitioner and kept in the Sub Jail, Alappuzha from 25/05/1122 M.E to 26/04/1123 M.E and from 27/04/1123 to 05/09/1123 in the Central Prison, Thiruvananthapuram. During his life time, he was given the State pension under the Kerala Freedom Fighters' Pension Rules. He expired on 09/04/1978. Before that he had filed an application for grant of pension, which is evidenced as Ext.P1. Ext.P2 is the order of the District Collector, Alappuzha granting State Pension to the petitioner. A true copy of the extract of the register issued by the Superintendent, Central Prison, Thiruvananthapuram is produced as Ext.P3, and the same was also forwarded. Ext.P4 is the copy of the non-availability of records certificate issued by the Superintendent, Sub Jail, Alappuzha relating to the late W.P.(C) No.16736/2006 -:2:- husband of the petitioner who had claimed under-trial imprisonment from Makaram 1122 to Vrichigam 1123. 2. Various representations were being filed before the authorities concerned and, ultimately, by Ext.P9 the application stands rejected. In the order rejecting the application, namely, Ext.P9 it is stated that the prescribed minimum period of imprisonment should be six months and going by the relevant certificate (Ext.P3), the entry of admission into jail is shown as 27 Vrichigam 1123 (i.e.11/12/1947) but it does not show the date of release. Therefore, it is concluded that going by Ext.P3 it cannot not be treated that he was in prison for the minimum period of six months and, hence, the same is not acceptable. The order further shows that the State Government had recommended the application for pension. 3. Heard the learned counsel and the learned Standing Counsel appearing for the Central Government. The Central Government Standing Counsel made available before me letter dated 08/01/2006, sent by the Principal Secretary to Government to the Secretary to Government of India, Ministry of Home Affairs which shows that the State Government had duly recommended the case for Swatantrata Sainik Samman Pension. It also shows that the District Collector, Alappuzha had reported that the contents of the jail record tally with the copy of the convict register kept there. W.P.(C) No.16736/2006 -:3:- 4. Along with an I.A.No.9674/2008, the petitioner has produced Ext.P12 a copy of the report forwarded by the Tahsildar in the year 1971 for the purpose of grant of Kerala Freedom Fighters' Pension to the late husband of the petitioner. Column (2) relates to the period during which the petitioner was under detention. It is stated that he was under detention for over six months. Relying upon the said entry it is submitted that the late husband of the petitioner has undergone imprisonment for six months. 5. Then the question is as to whether going by Ext.P3 there is clear proof regarding the minimum period of imprisonment. Column (2) relates to date of admission to jail which is shown as 27 Vrichigam 1123 corresponding to 11/12/1947, column (15) shows that he was convicted and sentenced to life (subject to confirmation of High Court), column (16) shows that he was sent to Taluk First Class Magistrate Court, Cherthala on 05/09/1123 as per letter No.232 dated 24/08/1123. It is true that the date of release is not shown in Ext.P3. 05/09/1123 is not the date of release also. This is a case where the person was convicted and sentenced to life imprisonment. In Ext.P3 the date of release is not obviously shown and what happened after his production before the Taluk First Class Magistrate, Cherthala is also not evident. The State Government in this case has duly recommended the application. Going by the report of the Tahsildar he was under detention for about a period more than six W.P.(C) No.16736/2006 -:4:- months. Of course, now, because of the destruction of records, further details regarding the date of release are not available. But this is a case where the petitioner's late husband is a genuine freedom fighter who was convicted and sentenced for participation in the Punnapra-Vayalar Freedom Struggle. Herein the petitioner's late husband was granted pension under the Kerala Freedom Fighters' Pension Rules also, which is evidenced by Ext.P2. Now the question is whether in such circumstances a presumption can be drawn that the petitioner's late husband who was convicted and sentenced for life imprisonment is eligible for grant of pension. In the light of Ext.P12 it can be safely concluded that the period of detention was more than six months. The same will satisfy the minimum period for the grant of S.S.S Pension. Even though the date of release was not mentioned in Ext.P3, in the light of the fact that there was clear endorsement that he was convicted and sentenced for life imprisonment, it can be safely presumed that the person had undergone minimum imprisonment for six months for the purpose of grant of pension. Since the scheme is one engrafted for the benefit of the freedom fighters, a beneficial construction in accordance with the object and purpose of the scheme has to be taken and, therefore, it can be safely concluded that he had undergone the period of imprisonment (six months), to make the petitioner eligible for grant of pension. W.P.(C) No.16736/2006 -:5:- 6. The learned Standing Counsel appearing for the first respondent submitted that even though in Ext.P3 it is recorded that the court had awarded life imprisonment, in the absence of clear evidence with regard to the date of release, the burden is on the petitioner to produce other evidence. According to me, the said contention cannot be accepted in the light of the fact that in Ext.P12 there is a clear report that he had undergone imprisonment for more than six months. 7. In that view of the matter, Ext.P9 is quashed. There will be a direction to the respondents to pass consequential orders sanctioning pension within two months from the date of receipt of the copy of this judgment. The petitioner's entitlement for arrears, calculated from the date of the receipt of application dated 14/05/1998, will also be considered while sanctioning pension. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms