IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 13TH DAY OF DECEMBER 2011/22ND AGRAHAYANA 1933 WPC.No. 22582 of 2010 (W) ------------------------------------ PETITIONER: BHARATHI KRISHNAN, W/O.LATE ETTACHI KRISHNAN, CHIRAYIL VEEDU, THIRUMALABHAGOM.P.O., THURAVOOR, CHERTHALA TALUK, ALAPPUZHA-688 542. BY ADV.SRI.K.K.SATHEESH RESPONDENTS: 1 UNION OF INDIA REP. BY THE SECRETARY TO GOVT., MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAWAN, KHAN MARKET NEW DELHI-110 003. 2 STATE OF KERALA REP. BY THE SECRETARY TO GOVT., GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA ADV. SMT.P.SAREENA GEORGE, CGC R2 BYGOVERNMENT PLEADER SRI.ROSE MICHAEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 22582/2010 EXT. P1 TRUE COPY OF THE CONVICT REGISTER OF CENTRAL PRISON, TRIVANDRUM ISSUED BY THE SUPDT. EXT. P2 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA DT. 29.2.1972 EXT. P3 TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER'S LATE HUSBAND DT. 27.4.1998 EXT. P4 TRUE COPY OF THE JUDGMENT DT. 31.10.2005 PASSED BY THIS COURT IN WPC 37344/2003 EXT. P5 TRUE COPY OF THE ORDER NO.52/CC/KER/73/2005-FF(SZ) DT. 23.3.2006 ISSUED BY THE FIRST RESPONDENT EXT. P6 TRUE COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT DT. 30.11.2006 EXT. P7 TRUE COPY OF THE FIR IN CRIME 7/1122 ME EXT. P8 TRUE COPY OF THE JUDMENT DT. 1.12.2008 PASSED BY THIS COURT IN WPC 2571/07 EXT. P9 TRUE COPY OF THE LETTER NO.26534/FFP.A2/2007/GAD DT. 15.5.2009 ISSUED BY THE SECOND RESPONDENT TO THE FIRST RESPONDENT EXT. P10 TRUE COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT DT. 15.1.2010 EXT. P11 TRUE COPY OF THE JAIL CERTIFICATE ISSUED BY THE SUPDT. OF CENTRAL PRISON, TRIVANDRUM IN RESPECT OF SRI.C.R.KARUNAKARAN EXT. P12 TRUE COPY OF THE PENSION PAYMENT ORDER IN RESPECT OF SMT.PANKAJAKSHI KARUNAKARAN EXT. P13 TRUE COPY OF THE ORDER NO.52/CC/K/13/2007-FF/SZ DT. 4.1.2010 ISSUED BY THE FIRST RESPONDENT RESPONDENT'S EXHIBITS: EXT.R1A TRUE COPY OF SWATHANTHRATA SAINIK SAMMAN PENSION SCHEME, 1980 EXT.R1B TRUE COPY OF THE LETTER DT. 23.3.2006 ISSUED BY THE UNDER SECRETARY TO GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS BEARING NO.52/CC/KER/73-FF(SZ) /TRUE COPY/ P.R.Ramachandra Menon, J. ------------------------------------------- W.P.(C)No.22582 of 2010 W ------------------------------------------- Dated this the 13th day of December, 2011 JUDGMENT Denial of pension under the 'Swathantrata Sainik Samman Pension Scheme' (SSSP Scheme in short) to the petitioner is under challenge. 2. The proceedings are now before this Court after several rounds of litigation at different levels. The case of the petitioner is that the deceased husband of the petitioner was a participant in the 'Punnapra-Vayalar' Movement, which was declared as a freedom struggle by the Central Government. In connection with such participation, the deceased husband of the petitioner had to undergo imprisonment for more than six months from 29.01.1124 ME to 25.07.1124 ME, as revealed from Exhibit P1 'jail certificate' issued by the concerned authorities. After considering the credentials of the deceased husband, the involvement of the said person was duly recognised by the State Government, treating him as a freedom fighter and was granted WPC 22582/2010 2 pension under the State Scheme, as borne by Exhibit P2. 3. The deceased husband had also filed Exhibit P3 application for the central pension under the SSSP Scheme. Since the claim was not positively dealt with, he approached this Court by filing W.P.(C)No.37344/2003 and during the pendency of the matter, he took his last breath, pursuant to which, the petitioner got impleaded as additional petitioner as per order in I.A.No.15822/2005 dated 31.10.2005. The said writ petition was disposed of as per Exhibit P4 judgment dated 31.10.2005, directing the second respondent/State to forward the verification-cum-entitlement report on the application to the first respondent/Union Government and to have the matter finalised as specified therein. 4. After considering the matter, first respondent rejected the claim as per Exhibit P5 proceedings dated 23.03.2006, referring to the non-satisfaction of the relevant norms/ requirements and also the lapse on the part of the State Government in forwarding the particulars, particularly lack of a WPC 22582/2010 3 positive recommendation, in this regard. The petitioner filed Exhibit P6 representation, followed by such other proceedings and thereafter, approached this Court again by filing W.P.(C)No. 2571/2007, which was disposed of by Exhibit P8 judgment dated 01.12.2008, wherein, the contentions taken by the parties on both sides were discussed in detail. The discrepancies pointed out, especially with regard to the difference in the number of the case concerned (C.C.No.38/1123 ME and also as to the FIR in Crime No.7/1122 ME), produced as Exhibit P7, were also meticulously analysed, with reference to the concerned offences under Section 9(i)cl.(a) read with Section 2 cl.6 of Act I of 1122 ME. It was in the said circumstance that, the Court observed that the matter required to be considered with a deeper enquiry in the hands of the State as well as the Central Government, thus, giving appropriate directions to both the respondents to have the credentials of the petitioner considered and finalised accordingly. WPC 22582/2010 4 5. Pursuant to the above verdict, the State Government sent Exhibit P9 report to the first respondent on 15.05.2009, however, observing that the claim preferred by the petitioner was 'not recommended'. This, in turn, was considered by the first respondent, who issued Exhibit P13 rejection order dated 04.01.2010, which forms part of the subject matter of challenge in this writ petition. 6. Both the respondents have filed separate counter affidavits seeking to sustain their stand. 7. Learned counsel for the petitioner submits that there is absolutely no rationale on the part of the respondents in trying to field a pool of smoke over the pension claim under the Central Scheme, more so, on flimsy reasons with reference to the particulars of the criminal case/crime number; the offences involved and the dates of detention. 8. In the counter affidavit filed by the first respondent, non- satisfaction of the requirements, with regard to the relevant documents necessary to consider the claim, has been WPC 22582/2010 5 highlighted, particularly with reference to the Non-Availability of Record Certificate (NARC), Co-Prisoner Certificate (CPC), Personal Knowledge Certificate (PKC), etc., besides projecting that the claim was a not duly recommended by the State and as such, there is no fault on the part of the said respondent in rejecting the same as per Exhibit P13. 9. In the counter affidavit filed by the second respondent, similar stand is taken, as borne by Exhibit P9 sent by them to the first respondent, holding that, in view of the discrepancies with reference to the crime/case number and the offences involved, petitioner was not entitled to get any relief, either by way of recommendation or to have the same sanctioned under the SSSP Scheme. 10. After hearing both sides, this Court finds that there is considerable force in the pleadings and submissions made on behalf of the petitioner, that the proceedings have been finalised by the respondents without proper application of mind, or with regard to the actual facts ad figures. A similarly situated person WPC 22582/2010 6 like the deceased husband of the petitioner, who was involved in the very same Movement (Sri.Ramankutty Karunakaran) and who faced the trial as an accused in C.C.No.38/1123 on the file of the Judicial First Class Magistrate, Cherthala and was remaining behind the bars along with the deceased husband of the petitioner for the very same offences, had also put in necessary application for granting the benefit under the SSSP Scheme. After considering the claim of the said person, the same was recommended by the State Government. The particulars of the case involving the offences and the 'convict number' involved are discernible from the certificates issued from the jail authorities. Based on such recommendation of the State Government, the matter was considered by the Central Government, who sanctioned the pension under the SSSP Scheme, in favour of the widow of the said person, as per Exhibit P12 order dated 24.07.2009. 11. The specific pleadings raised by the present writ petitioner in the writ petition in the above regard have not been WPC 22582/2010 7 successfully rebutted by the respondents anywhere in their counter affidavits. On the other hand, the factual position relating to Exhibits P11 and P12 has been virtually conceded by the State Government as well, as given in paragraph 9 of the counter affidavit dated 24.02.2011, though they seek to take a 'U-turn' in respect of the eligibility of the petitioner by saying something else in paragraph 13 of the same counter affidavit. For the purpose of convenience of reference, both the paragraphs are extracted below: “9. The petitioner has submitted a representation dated 15.01.2010 enclosing a copy of jail certificate issued from the Superintendent, Central Prison, Thiruvananthapuram in respect of Sri.Ramakutty Karunakaran who was convicted as No.9573 accused in C.C.38/1123 on the file of First Class Magistrate, Cherthalai in which the petitioner's late husband Sri.Ettachi Krishnan has also been included and has requested Government to re-examine her claim in view of granting of Swathantrata Sainik Samman Pension in an identical case to Smt.Pankajakshi Karunakaran, W/o late Ramankutty Karunakaran. The representation and WPC 22582/2010 8 enclosures had again been forwarded to the District Collector, Alappuzha for their remarks. The District Collector has reported that Shri.Ramankutty Karunakaran and the petitioner's late husband Sri.Ettachi Krishnan were accused in case No.CC.38/1123 ME of the First Class Magistrate Court. In pursuance of judgment dated 12.12.2008 in WP(C) No.31590/05. Smt.Pankajakshi Karunakaran was granted Swathantrata Sainik Samman Pension. At the same time in reply to the non recommendation report dt. 15.5.2009 of State Government on the case of the petitioner, the Government of India have again rejected the claim of the petitioner for Swathantrata Sainik Samman Pension vide their order No.52/CC/K/13/2007- FF(SZ) dated 4.1.2010 for want of supporting documents and hence her Review Petition could not be considered. 13. On the basis of the directions contained in the judgment dated 1.12.2008 in WP(C)No.2571/07, State Government considered the Review Petition along with the FIR in Crime No.7/1122 in detail, in consultation with the District Collector, Alappuzha. The District Collector has reported that in the absence of relevant records he could not verify the genuineness of the FIR produced by the petitioner and recommended the case without any valid grounds. FIR in Cr.No.7/1122 cannot WPC 22582/2010 9 be linked to the sufferings underwent by the petitioner's husband in CC No.38/1123 ME for the sole reason that the sections mentioned in the two are the same. The main events of the Punnapra-Vayalar Struggle started from 7.3.1122 ME. The copy of the FIR in Cr.No.7/1122 produced by the petitioner is seen framed against an offence committed on 18.09.1122, that is six months after the main events of the Punnapra-Vayalar Struggle took place. Case No.PE 7/1122 ME is related to Punnapra-Vayalar Struggle and the relevant records of the case are not available as reported by the District Collector, Alappuzha in other cases. There is over-writing in the case number denoted at the top of the copy of the FIR and thereby caused a doubt on its genuineness. Hence a non recommendation report on the case of the petitioner was forwarded to the Government of India on 15.5.2009 for further action at their end.” 12. After filing the counter affidavit dated 31.08.2010, the first respondent has filed an additional counter affidavit dated 23.10.2010, producing a copy of the SSSP Scheme as Exhibit R1 (a) and a copy of the letter dated 23.3.2006 of the Ministry of Home Affairs as Exhibit R1(b), which, in fact, pertains to the WPC 22582/2010 10 rejection of the claim put forth earlier and this, in turn, happens to be nothing other than Exhibit P5 produced by the petitioner in this writ petition. The additional counter affidavit does not contain anything else with regard to the factual or legal position. 13. It is relevant to note that the deceased husband of the petitioner was also an accused in C.C.No.38/1123 ME/Exhibit P7 FIR in respect of the offences under Section 9(i)cl.(a) read with Section 2 cl.6 of Act I of 1122 ME. It is in respect of the same offences and the same case connected with the person by name Ramankutty Karunakaran; who was recommended by the State Government and the pension under the SSSP Scheme was granted by the Central Government as per Exhibit P12 order. Convict Number of the said person is '9573' and that of the deceased husband of the petitioner is '9572', being involved in the very same proceedings and having undergone detention for more than six months as given in Exhibit P1 jail certificate. When positive benefits have been given to a co-accused/convict in respect of the same case and same set of offences, reckoning the WPC 22582/2010 11 contribution made by the concerned person as a participant of the freedom struggle, there is no justification on part of the respondents for rejecting the similar claim in respect of the same cause and contribution made by the deceased husband of the petitioner. 14. True, there is some substance in the contention raised by the learned Central Government Standing Counsel on behalf of the first respondent that, merely for the reason that benefits have been granted to somebody else by way of mistake, the same cannot be extended to the deceased husband of the petitioner by way of writ of mandamus. In other words, the benefits, if any, granted by way of 'mistake' is not liable to be perpetuated by the issuance of a writ of mandamus. This position of law is well settled as declared by the Apex Court in Chandigarh Administration v. Jagjit Singh (AIR 1995 SC 705). There is absolutely no dispute over the said legal proposition. But, the question is whether, granting of benefit to the person named in Exhibit P11, recommended by the State Government and WPC 22582/2010 12 sanctioned by the first respondent/Union vide Exhibit P12, is by way of mistake or not. There is absolutely no pleading either in the counter affidavit or in the additional counter affidavit filed by the first respondent, nor in the counter affidavit of the second respondent, that granting of the benefit to the person concerned in Exhibit P12 was by way of any such mistake. In the said circumstance, this Court has to arrive at a finding that the benefits granted to the said person, on substantiating the credentials, has necessarily to be extended to the petitioner as well in view of the involvement of her deceased husband in the freedom struggle and the conviction and the sentence undergone by the said person, along with the person named in Exhibit P11, in favour of whom Exhibit P12 order has been passed. As such, the impugned orders are no more liable to be sustained. It is ordered accordingly and Exhibits P9 and P13 are set aside. 15. The second respondent State of Kerala is directed to make necessary recommendation along with all the relevant particulars to the first respondent, with specific reference to WPC 22582/2010 13 Exhibits P11 and P12 within a period of two months, on receipt of which, the matter shall be considered by the first respondent in the light of the above observations and Exhibits P11 and P12 and pass appropriate orders in accordance with law, as expeditiously as possible. The benefits flowing therefrom, to the extent as payable, shall be disbursed within three months from the date of receipt of the recommendation from the State Government as aforesaid. 16. It is also made clear that, since the law stands settled by virtue of the declaration made by the Apex Court in Union of India v. Kaushalayadevi ((2007) 9 SCC 525)) and this Court in Puthusseri Valiya Veettil Thambayi Amma v. Union of India (2011 (2) KHC 891), the beneficiary is entitled to have the pension with effect from the date of receipt of the application, when the claim is supported by 'primary evidence', i.e., the jail certificate, unlike other cases sought to be substantiated by secondary evidence, where it shall be with effect from the date of the order. In the instant case, since the claim is substantiated on WPC 22582/2010 14 the basis of the primary evidence, i.e., jail certificate, it has to be from the 'date of the application' and non-receipt of the State recommendation shall not stand in the way, as made clear by the Apex Court in the aforesaid decision. The writ petition is allowed. No costs. (P.R.Ramachandra Menon, Judge) tkv