IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 WP(C).No. 3338 of 2010(N) --------------------------------------- PETITIONER(S): ------------------------ NALINI, W/O.VELUKARUNAKARAN, AGED 66, CHETIVEEDU, MUHAMMA P.O., ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): ---------------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA R2 BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.3338/2010 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION DTD. 11/05/98. P2: COPY OF THE CERTIFICATE OF SRI. KUNJAN SUKUMARAN DTD.30/04/1988. P3: COPY OF THE ORDER OF THE DEPUTY SECRETARY, GOVERNMENT OF INDIA GRANTING PENSION TO SRI. SUKUMARAN DTD. NIL. P4: COPY OF THE TRUE EXTRACT OF THE CONVICT REGISTRAR RELATING TO SRI.KUNJAN SUKUMARAN ISSUED BY THE SUPERINTENDENT, CENTRAL PRISON, TRIVANDRUM DTD. NIL. P5: COPY OF THE CERTIFICATE OF SRI. NARAYANAN RAMANKUTTY DTD. 14/11/2001. P6: COPY OF THE CONVICT REGISTAR RELATING TO SRI.NARAYANAN RAMANKUTTY ISSUED BY THE SUPERINTENDENT, CENTRAL JAIL, THIRUVANANTHAPURAM DTD. 27/01/55. P7: COPY OF THE CENTRAL PENSION ORDER OF SRI.NARAYANAN RAMANKUTTY DTD. 26/07/99. P8: COPY OF THE ORDER OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA DTD. 24/12/2009. P9: COPY OF THE APPLICATION AND ORDER IN CASE NO.P.E.NO.8/1122 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHERTHALA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.3338 Of 2010 ----------------------------------------------------- DATED THIS THE 28th DAY OF SEPTEMBER, 2010 JUDGMENT The Writ Petition is filed by the widow of late Shri Velukarunakaran, challenging the order passed by the 1st respondent rejecting the claim for grant of Swantrata Sainik Samman Pension. 2. The petitioner submitted the application, Exhibit P1, for grant of pension. The deceased was an active participant of Punnapra-Vayalar Struggle and was arrayed as an accused in P.E.8/1122 ME of the First Class Magistrate Court, Cherthala and pursuant to the warrant issued from the Court, he went underground in order to evade arrest from October 1946 to December 1947. He was granted pension under the Kerala Freedom Fighter's Pension Scheme. The petitioner produced a Personal Knowledge Certificate (PKC) from one Shri Kunjan Sukumaran(Exhibit P2). Exhibit P3 is the order granting pension to Shri Kunjan Sukumaran. It is pointed out by the learned counsel for the petitioner that extracts of the Convict Register relating to the said certifier were also produced before the W.P.(C)No.3338/10 -2- Government. Exhibit P5 is the Personal Knowledge Certificate issued by another freedom fighter, namely Shri Narayanan Ramankutty and Exhibits P6 and P7 are the documents relating to the said certifier. 3. The 1st respondent has filed a counter affidavit, justifying the order passed. 4. Mainly four reasons have been shown in Exhibit P8. That the petitioner has not submitted any acceptable record based primary evidence duly verified by the State Government, the NARC produced is not issued by the Government and the PKCs. submitted are not acceptable. It is finally pointed out that the State Government has not recommended the claim. 5. As directed by this Court, The learned Government Pleader made available the files maintained by the State Government. The State Government has forwarded a letter dated 18.11.2009 without recommending the application. A perusal of the letter shows that the Personal Knowledge Certificate from Shri Kunjan Sukumaran has not been accepted, as it bears only a thumb impression. It is also mentioned that W.P.(C)No.3338/10 -3- on verifying the extract of the Convict Register, the above certifier has undergone only one year's imprisonment. The Personal Knowledge Certificate from Shri Chandranandan, Ex- MLA is not in the prescribed form. Accordingly, both the Personal Knowledge Certificates have been treated as not valid. The report of the District Collector, dated 19.10.2009 is also mentioned in the letter and with reference to the same, it is noted that there is no specific recommendation by the District Collector, Alappuzha. 6. A perusal of the files maintained by the State Government shows the following. 7. The petitioner had produced two extracts of Convict Register relating to Shri Kunjan Sukumaran. The first one is available in Page No.39 and the second one is available in Page No.41. Evidently, the extract of the Convict Register maintained at Page No.41 alone has been referred to by the Government. The earlier one available in page No.39 shows that the date of admission in the jail is 21.3.1952 and he was released on 26.1.1955. That means he was in jail for nearly three years. W.P.(C)No.3338/10 -4- Admittedly, going by the other extract available in Page No.41, the certifier was in jail for a period of one year. He was evidently convicted and sentenced in two different cases and had served jail terms separately. All these details, including the case numbers, sentence, date of sentence, expiry of sentence and date of release are clearly available. Therefore, these documents satisfy the requirements for a genuine certifier, as jail term of two years is the one required. In that view of the matter, in the letter dated 18.11.2009, there is an apparent error relating to the certifier and the reasons shown for not accepting the PKC of Shri Kunjan Sukumaran are incorrect. Apart from the jail term of the certifier, what is mentioned is that he has only given the thumb impression. It cannot be said that the certifier should have affixed his signature itself. It is not shown as to why thumb impression cannot be accepted. At any rate, it will not invalidate the certificate issued by him. Therefore, the said reason also cannot be supported. 8. Further, the report of the District Collector dated 19.10.2009 available in page 23 shows that the inquiry made W.P.(C)No.3338/10 -5- through the Tahsildar shows that Shri Velukarunakaran was a freedom fighter involved in Punnapra-Vayalar Struggle and a recipient of State Freedom Fighter's Pension. Non- recommendation by the District Collector is immaterial as he was only asked to submit an inquiry report by the judgment in W.P. (C)No.22573/09. The deceased was a genuine freedom fighter,as evident from the report also. 9. As far as the validity of the NARC is concerned, the learned counsel for the petitioner relied upon the judgment in W.P.(C)No.10843/10 wherein in paragraph No.3 with regard to the NARC issued from the concerned Magistrate Court it has been held as follows: “3. Going by the counter affidavit, the NARC should conform to the following form: “All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant, have been consulted and it is confirmed that the official records of the relevant time are not available.” I have held earlier in other similar cases that no freedom fighter in this country can furnish such an NARC. The petitioner has already produced an W.P.(C)No.3338/10 -6- NARC from the concerned Magistrate Court where according to the petitioner the case against the petitioner's husband during the freedom struggle was registered pursuant to which he went underground. I am of opinion that, the petitioner cannot do anything else other than producing such an NARC. Even otherwise as far as the Government records are concerned the Supreme Court and this Court has again and again held that wherever records in respect of freedom fighters are to be obtained from the Government Offices, it is the duty of the Government to get the same. As such, I do not find any merit whatsoever in the ground for rejection of the NARC produced by the petitioner. Therefore I hold that, the NARC(Ext.P8) produced by the petitioner is sufficient for the purpose of claiming pension under the Scheme.” Therein also the certifier was Shri Kunjan Sukumaran. This Court held therein that the rejection of the PKC from Shri Kunjan Sukumaran is not correct. The NARC produced by the petitioner is therefore sufficient going by the findings rendered by the learned Judge in W.P.(C)No.10843/10, to which I respectfully agree. Therefore, the said objection in Exhibit P8 cannot be sustained. W.P.(C)No.3338/10 -7- 10. The matter will have to be reconsidered at the hands of the respondents. Therefore, the order Exhibit P8 is quashed. There will be a direction to the State Government to re-examine the matter and forward a fresh verification-cum-entitlement report with due recommendation within a period of one month from the date of receipt of a copy of this judgment in the light of the findings herein. Exhibits P5 to P7 will also be considered for the said purpose. The 1st respondent will pass appropriate fresh orders within a further period of three months thereafter and in the event of grant of pension, the entitlement of the petitioner for payment of arrears with effect from the date of receipt of the application will also be considered. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn