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. 33047 of 2005(H) -------------------------------------- PETITIONER(S): ---------------------- *1. KUTTIPENNU, W/O. LATE SANKARAN KRISHNAN, KANIYANKATTIL HOUSE, ERAMALLOOR P.O., CHERTHALA TALUK, ALAPPUZHA DT. (*DIED) *SUPPLEMENTARY PETITIONERS 2 TO 4 IMPLEADED 2. LAKSHMIKUTTY, D/O. LATE KUTTIPENNU, AGED 65, KARATHARA HOUSE, ERAMALLOOR P.O., CHERTHALA, ALAPPUZHA DT. 3. KAMALA, D/O.LATE KUTTIPENNU, AGED 64, THOTTAYACHIRA VEEDU, ULLALA P.O, VAIKOM TALUK, KOTTAYAM DT. 4. RADHA, D/O.LATE KUTTIPENNU, AGED 62, VADACKAKATH HOUSE, EZHUPUNNA NORTH P.O, CHERTHALA TALUK, ALAPPUZHA DT. * SUPPLEMENTARY PETITIONERS 2 TO 4 ARE IMPLEADED AS PER ORDER DATED 12/12/2008 IN I.A. NO.12331/2007. BY ADV. SRI.K.K.SATHEESH RESPONDENT(S): ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-110 003. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.T.K.MOHANAN FOR R2 ADV. SRI.CYRIAC KURIAN, ACGSC FOR R1 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. 33047/2005-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE EXTRACT OF THE CONVICT REGISTER OF CENTRAL PRISON, TRIVANDRUM ISSUED BY THE SUPERINTENDENT. EXT.P2: COPY OF THE LETTER NO.F6-2733/73 DATED 08/08/1975 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA, INVITING THE PETITIONER'S LATE HUSBAND TO RECEIVE THE THAMRAPATHRA. EXT.P3: COPY OF THE ORDER NO.R.DIS.55797/86/N4 DATED 22/09/1986 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA. EXT.P4: COPY OF THE APPLICATION DATED 11/06/98 SUBMITTED BY THE PETITIONER FOR THE GRANT OF SSS PENSION. EXT.P5: COPY OF THE NARC ISSUED BY THE SUPDT. OF SUB JAIL, ALLEPPEY. EXT.P6: COPY OF THE CERTIFICATE NO.K.DIS.3982/98/A10 DATED 26/03/1998 ISSUED BY THE TAHSILDAR, CHERTHALA. EXT.P7: COPY OF THE ACKNOELDGEMENT RECEIPT SEALED BY THE RESPONDENT DATED 15/06/1998. EXT.P8: COPY OF THE LETTER NO.F.119/2/GENL.98/SZ/98 DATED 17/09/1998 ISSUED BY THE 1ST RESPONDENT. EXT.P9: COPY OF THE AFFIDAVIT DULY ATTESTED BY THE JUDICIAL 1ST CLASS MAGISTRATE-I, CHERTHALA DATED 10/11/1998. RESPONDENT'S ANNEXURES: ANNEXURE R1: COPY OF THE LETTER SUBMITTED BY MIISTTRY OF HOME AFFAIRS/GRIH MANTRALAYA, DATED 14/02/2006. //TRUE COPY// P.A. TO JUDGE Rs/ T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No.33047/2005-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of December, 2008. J U D G M E N T The original petitioner died during the pendency of the case and supplementary petitioners are impleaded. The brief facts necessary for the disposal of the case are the following:- 2. The original petitioner was the widow of Sri.Sankaran Krishnan a freedom fighter who was convicted for the participation in the Punnapra-Vayalar Struggle. He belonged to Scheduled Caste. It is averred that on account of his participation in the said struggle, he had undergone under-trial imprisonment for a period of about one year from Makaram 1122 ME to Makaram 1123 ME in the defunct Sub Jail, Alappuzha in case No.PE.5/1122 ME on the file of the Special Magistrate Court, Alappuzha and undergone rigorous imprisonment for three months in Case No.SC.1/1123 ME. Ext.P1 is the true copy of the extract of the convict register of the Central Prison, Thiruvananthapuram produced in support of the above. He was a holder of Thamrapatra, which fact is evidenced by Ext.P2 letter of the District Collector. He was granted the Kerala Freedom Fighters' Pension as early as on 01/04/1971 which is evidenced by Ext.P3. After his death the widow was allowed the benefits. Ext.P4 is the W.P.(C) No.33047/2005 -:2:- application submitted by the original petitioner for grant of pension. She had produced the required documents along with the application. Ext.P6 shows that they belong to Hindu Paravan Community which is recognised as Scheduled Caste. Going by Ext.P7 it is evident that the application was received by the first respondent on 15/06/1998. The matter was under various communications. The petitioner has produced the non-availability of records certificate issued by the Superintendent of Sub Jail, Alappuzha, Ext.P5 and an affidavit duly attested by the Judicial First Class Magistrate-I, Cherthala, Ext.P9. 3. Along with the additional counter affidavit filed on behalf of the first respondent they have produced Annexure R-1 which shows that the claim has been rejected for the reason that the period of sentence is from 05/06/1123 ME to 30/08/1123 ME (only 86 days) which is less than the minimum suffering of three months. In the counter affidavit filed by the State Government also what is stated is that the imprisonment is for a period of 86 days only therefore, the minimum period of three months prescribed for the grant of pension has not been satisfied. 4. The learned counsel for the petitioner submitted that it is evident from Ext.P1 itself that he was convicted and sentenced for three months rigorous imprisonment and he was released on 30/08/1123 under order of W.P.(C) No.33047/2005 -:3:- Government vide G.O.R(DIS) 1216/48/Judl dated 10/04/1948. Actually going by column (18) of Ext.P1, the date of expiry of sentence is 4 Medam 1123. Herein he was released on the 30/08/1123, obviously, by grant of remission by the Government. It is therefore submitted that premature release shall not be taken as a ground to reject the application itself. Reliance is placed on the Division Bench decision of this Court in Pappu Kesavan v.Union of India [1996 (2) KLT 1035] to contend for the position that premature release after grant of remission shall not be taken as a factor to reduce the period of imprisonment. My attention is invited to paragraph (7) of the above judgment. After considering the relevant facts it has held that for counting the period of imprisonment the Central Scheme provided that the actual period of sentence should be counted including the remissions. That can be seen from Explanation-I to the first eligibility clause dealing with imprisonment. The second explanation reads thus: “period of normal remission upto one month will be treated as part of actual imprisonment”. In that view of the matter and in view of the other facts discussed in paragraph (9) of the judgment Their Lordships held that the appellant in that case was entitled to the pension under the Central Scheme. In a decision of the Full Bench of this Court namely in Union of India v.Peter Devassia [2003(1) KLT 467] it has been held that a W.P.(C) No.33047/2005 -:4:- freedom fighter who was convicted for participation in freedom struggle, is entitled to count his under trial period towards actual suffering, without undergoing jail suffering during the period of trial even for a day. After considering the purpose of explanation 3 to the effect that “ in the case of a trial ending in conviction, under trial will be counted towards actual imprisonment suffered”, it was held that it is immaterial whether he was under detention or on bail or otherwise during the trial period. But in a case where the trial did not end in conviction, the under trial period (not imprisonment) will not be counted towards imprisonment. Thus by fiction certain period which in reality cannot be counted towards actual imprisonment is deemed as imprisonment by virtue of Explanation 3. Going by the said dictum also it is clear that the period covered by the trial of the case will also make him eligible for grant of pension. In this case the imprisonment is for three months. The view taken by first respondent is, because of his premature release, the period of imprisonment is only 86 days and not three months. As noticed already, he was released on 30/08/1123 under Government Order dated 10/04/1948. Such release can be ordered by the Government only by the grant of remission. Therefore, the remaining period of 4 days could itself be taken as period of remission in the light of the Government Order. If so going by the dictum laid down in Pappu W.P.(C) No.33047/2005 -:5:- Kesavan's case [1996 (2) KLT 1035], the period of remission can be counted. If that is so, by counting four days, the total period will be three months. It is the well accepted position under the Scheme that as far as members of Scheduled Castes are concerned, the minimum three months imprisonment alone is required for making them eligible for pension. Apart from that going by the decision of the Full Bench referred to above, the period during which the person was under trial could also be counted. Even though there is no data available here it is clear that the trial would have gone for a considerable long period, being a sessions case, atleast for more than four days. Therefore, even those periods could also be counted towards three months period. 5. In that view of the matter there is minimum period of three months of imprisonment in this case. Therefore, Ext.R-I rejecting the application for grant of pension cannot be sustained and, it is set aside. The action of the State Government in not recommending the application for grant of S.S.S Pension is not correct. By taking the minimum period of imprisonment as three months, the State Government ought to have forwarded the verification-cum-entitlement report recommending the application for S.S.S Pension. Their report, to the contrary cannot be sustained. W.P.(C) No.33047/2005 -:6:- 6. Now, that the widow is no more, the supplementary petitioners who are her children will be entitled only for arrears of pension from 15/06/1998 (the date of receipt of Ext.P4 application) till 26/07/2007 which is the date of death of the first petitioner mother. 7. The supplemental petitioners will forward necessary documents to prove their relationship with the deceased first petitioner, to the first respondent within one month. The first respondent on receipt of the same will pass orders sanctioning pension treating the period of imprisonment as three months within a further period of two months thereafter, as per the Scheme. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms