IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 10537 of 2005(D) --------------------------------------- PETITIONER: ------------------- C.K.SUKUMARAN, PULICKAL THODY VEEDU, PERATTIL, OLLUR VILLAGE, CHIRAYANKIZH, TRIVANDRUM DISTRICT. BY ADV. SRI.M.P.RAMNATH. RESPONDENTS: ----------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION, (FREEDOM FIGHTERS PENSION-A) DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001. 3. DISTRICT COLLECTOR, COLLECTORS OFFICE, TRIVANDRUM. GOVERNMENT PLEADER SRI. M.R. SABU FOR R2 & R3, ADV. SRI. P. PARAMESWARAN NAIR, ASST. S.G. FOR R1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.10537/2005-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 09/03/1998 IN O.P. NO. 2779/1998-E. EXT.P.2: COPY OF THE LETTER DTD. 13/02/1974 IN FILE NO. 19/4112/73 - FF.VIII ISSUED BY THE R.1. EXT.P.3: COPY OF THE ORDER DTD. 12/02/1986 IN PROCEEDING NO. 119/5033/85-FF (SZ) OF THE R.1. EXT.P.4: COPY OF THE LETTER NO. 44632/FFP.A1/98/GAD TVM DTD. 10/08/1998 FROM R.2. TO THE PETITIONER. EXT.P.5: COPY OF THE REPLY ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT'S LETTER DTD. 23/11/1998. EXT.P.6: COPY OF THE JUDGMENT DTD. 23/02/1999 IN O.P. NO. 4605/1999. EXT.P.7: COPY OF THE COMMUNICATION DTD. 24/08/1999 IN PROCEEDING NO. 52/KERALA/63/99 - FF (LIT.II)SZ FROM THE R.1. TO THE PETITIONER. EXT.P.8: COPY OF THE COUNTER AFFIDAVIT DTD. 25/09/2000 FILED ON BEHALF OF THE R.1. IN O.P.29072/1999. EXT.P.9: COPY OF THE JUDGMENT DTD. 26/03/2001 IN O.P.29072/99. EXT.P.10: COPY OF THE LETTER DTD. 08/01/1996 BEARING NO.J.4.2310/94 FROM R.3. TO THE PETITIONER. EXT.P.11: COPY OF THE PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY M. KUNCHURAMAN, EX.MINISTER, KERALA DTD. 29/12/1972. EXT.P.12: COPY OF THE PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY K.P. NEELAKANTA PILLAI, EX. SPEAKER & GENERAL SECRETARY OF CONGRESS DTD. 05/10/1972. EXT.P.13: COPY OF THE PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY KATTAIKONAM V. SRIDHARAN EX. MLA DTD. 15/12/1973. EXT.P.14: COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY U. NEELAKANTAN, EX. MLA AND THARMA PATHRAM HOLDER AND RECIPIENT OF SSS PENSION DTD. 05/04/2001. EXT.P.15: COPY OF THE CHARGE SHEET NO.612/1122 (ME). W.P.(C). NO.10537/2005-D: EXT.P.16: COPY OF THE REPLY DTD. 16/08/1973 ISSUED BY SI OF POLICE ATTINGAL TO THE PETITIONER ABOUT NON AVAILABILITY OF RECORDS. EXT.P.17: COPY OF THE APPLICATION DTD. 04/09/1999 MADE BY THE PETITIONER BEFORE HONOURABLE CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM ALONGWITH ORDER THEREON REGARDING NON AVAILABILITY OF RECORDS. EXT.P.18: COPY OF THE SWORN AFFIDAVIT OF AGE PROOF BY THE PETITIONER BEFORE HONOURABLE 1ST CLASS JUDICIAL MAGISTRATE, ATTINGAL DTD. 24/01/1996. EXT.P.19: COPY OF THE LETTER DTD. 04/10/2001 IN PROCEEDING NO. 52/CC/269/2000/FF/LIT 11/ SZ ISSUED BY R.1. TO THE PETITIONER. EXT.P.20: COPY OF THE LETTER DTD. 20/25.9.2001 ISSUED BY R.2. TO R.1. EXT.P.21: COPY OF THE APPLICATION DTD. 11/10/2001 MADE BY THE PETITIONER TO HONOURABLE CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM. EXT.P.22: COPY OF THE JUDGMENT DTD. 21/02/2002 IN O.P. 32061/2001. EXT.P.23: COPY OF THE LETTER DTD. 29/05/2002 BEARING NO.G4.75608/2001 RECEIVED BY THE PETITIONER FROM R.3. REQUIRING AGE PROOF. EXT.P.24: COPY OF THE LETTER DTD. 02/06/2002 FROM THE PETITIONER TO THE R.3. EXT.P.25: COPY OF THE LETTER DTD. 07/06/2002 FROM THE R.3. TO THE PETITIONER. EXT.P.26: COPY OF THE LETTER DTD. 10/06/2002 FROM THE PETITIONER TO THE R.3. EXT.P.27: COPY OF THE LETTER DTD. 01/07/2002 FROM PETITIONER TO R.2. EXT.P.28: COPY OF THE LETTER DTD. 10/10/2002 ISSUED BY THE PETITIONER TO THE R.2. EXT.P.29: COPY OF THE LETTER DTD. 25/10/2002 BEARING NO.101799/FFPA1/01/GEN ADMIN. EXT.P.30: COPY OF THE LETTER DTD. 15/09/2003 ISSUED BY PETITIONER TO THE R.1. EXT.P.31: COPY OF THE LETTER DTD. 04/02/2004 FROM PETITIONER TO THE HOME MINISTRY. EXT.P.32: COPY OF THE LETTER DTD. 23/02/2004 FROM R.1. TO THE R.2. EXT.P.33: COPY OF THE LETTER DTD. 10/03/2004 SENT BY PETITIONER TO R.2. EXT.P.34: COPY OF THE LETTER DTD. 21/05/2004 ISSUED BY R.1. TO THE PETITIONER. EXT.P.35: COPY OF THE APPLICATION DTD. 23/10/1998 SUBMITTED BY THE PETITIONER ALONG WITH CO-PRISONER CERTIFICATE ISSUED BY SRI.R.ACHUTHAN DTD. 27/10/1985. W.P.(C). NO.10537/2005: RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE LETTER DTD. 15/07/2002. EXT.R2.B: COPY OF THE LETTER DTD. 05/08/2002. //TRUE COPY// P.A. TO JUDGE. prv. S.SIRI JAGAN, J. ================== W.P.(C).No.10537 of 2005 ================== Dated this the 21st day of August, 2008 J U D G M E N T The petitioner claims to be a freedom fighter. He applied for pension under the Swatantrata Sainik Samman (SSS) Pension Scheme (Ext.P8) of the Government of India. The same was rejected by the 1st respondent by Ext.P34 letter of the 1st respondent, wherein it was stated that as per the State Government's letters dated 15.7.2002 and 5.8.2002, the State Government has not recommended the claim of the petitioner for pension under SSS Pension Scheme, as he had not produced sufficient documentary evidence/certificates to prove his claim. The petitioner is challenging that order. According to the petitioner, the petitioner had in fact produced all documents necessary before respondents 2 and 3 to prove his eligibility for pension under the SSS Pension Scheme. The petitioner points out that under Ext.P8 Scheme, in the absence of direct documents to prove the petitioner's claim, he has the alternative of proving his claim by producing a co-prisoner's certificate along with a w.p.c.10537/05 2 non-availability of records certificate relating to the petitioner's imprisonment during the freedom struggle as provided under paragraph 2.2(b) of Ext.P8. The requirement as per the said clause is that the petitioner should produce a non availability of records certificate along two co-prisoners' certificates from freedom fighters who have proven jail sufferings with the applicant in jail. In case the certifier happens to be a sitting or Ex.MP/MLA, only one certificate in the place of two is required. The petitioner points out that by Ext.P35, the petitioner had produced a co-prisoner's certificate from one Sri.R.Achuthan, Ex.MP and Ex.MLA who had imprisonment for more than a year, along with which the petitioner had produced Exts.P16 and P17 non-availability of records certificates, which are sufficient to prove the claim of the petitioner. The petitioner submits that on the face of these documents, the respondents cannot deny the claim of the petitioner. The petitioner further submits that as proof of his age, he had produced an affidavit sworn to before a Magistrate, Ext.P18, in the absence of any other records like school records available, as the petitioner is a drop out from the school to join the freedom movement and the school records are w.p.c.10537/05 3 also not available. 2. The petitioner points out that earlier the petitioner had filed an application before this Court for a direction to the 3rd respondent to produce copy of the proceeding No.G4/86037/917 and notice number 95825/99 of the Advisory Board, which would go to prove that the Advisory Board had once recommended the petitioner's claim. This Court had passed an order dated 26.5.2008 directing respondents 2 and 3 to produce those documents. In answer to the said direction, an affidavit has been filed stating that the said documents are not available. Therefore, this Court passed the following order on 11.6.2008. 'In the affidavit now filed pursuant to order dated 26.5.2007, in paragraph 5 it is stated thus: “The District Collector, Thiruvananthapuram vide his letter dated, 04.06.2008 has reported that the copy of proceeding number G4/86037/917 and notice number 95825/99 of the Advisory Board held on 11.06.1999 are not available in his office. This respondent may therefore kindly be exempted from producing the above proceedings.” This is not acceptable. The District Collector is expected to maintain the file since it is common knowledge that the finalisation of proceedings in application for Freedom Fighters Pension, especially S.S.S. Pension would require quite some time. Therefore, the respondents are directed to take earnest efforts to find out the said documents and produce the same before this Court. This shall be done within a period of two weeks.” Pursuant to the above, an affidavit has been filed by the Senior w.p.c.10537/05 4 Superintendent, Suit Section, Collectorate, Thiruvananthapuram, to the effect that the said files have been destroyed. The petitioner would submit that after destroying all documents the 2nd respondent cannot deny benefits due to the petitioner on the ground that those documents are not available. 3. A counter affidavit has been filed by the State to the effect that the petitioner has not produced the relevant records necessary for proving the petitioner's claim. The petitioner further points out that in Ext.P20 letter issued by the 2nd respondent, it has been specifically stated that the petitioner had produced a copy of the SSS pension application dated 23.10.98, co-prisoner certificate from S/Shri. Achuthan and Neelakantan and personal knowledge certificate from S/Shri.Kunjuraman Ex- MLA, Neelakantan Pillai and Kattaikonam Sreedharan. The petitioner points out that in view of these clear evidence, respondents 2 and 3 cannot now state that the petitioner has not produced the documents necessary for proving his eligibility for SSS pension. The petitioner, therefore, seeks the following reliefs: “A). Issue a writ in the nature [sic] certiorari or such other w.p.c.10537/05 5 writs, orders or directions quashing Exhibit P34 order of the 1st respondent and also to set aside the letters dated 15.7.2002 and 5.8.2002 said to be issued by respondents 2 and 3 and referred to in Exhibit P34. B). Issue a writ in the nature of mandamus or such writs orders or directions directing the 1st respondent to award pension under the Swathanthra Sainik Samman Pension Scheme of the Government of India from the date of his 1st application for SSS pension i.e. 11.10.1972.” 4. I have considered the rival contentions in detail. 5. Going by Ext.P8 SSS Pension Scheme, the necessary documents for proving the petitioner's claim in the absence of direct evidence are a co-prisoner's certificates from a Ex.MP or MLA and a non-availability of records certificate. I am satisfied that Ext.P35, which has admittedly been produced by the petitioner, as is clear from Ext.P20, is a document as contemplated under the Scheme. He has also produced Exts.P16 and P17 non availability of records certificates and Ext.P18 affidavit regarding his age. These are sufficient documents as per Ext.P8 scheme. The attitude of respondents 2 and 3 in the matter also would cast considerable doubt on their bonafides in the matter. When they were directed to produce documents which admittedly were there in the files, they filed an affidavit to the effect that those files were destroyed. Thereafter, they have w.p.c.10537/05 6 chosen to file a counter affidavit saying that the petitioner has not produced necessary documents. At the same time, in Ext.P20, the genuineness of which is not disputed by respondents 2 and 3, it is specifically stated that the petitioner has produced relevant documents. Therefore, respondents 2 and 3 cannot now take a stand that the petitioner's claim cannot be considered now in the absence of documents proving the eligibility of the petitioner. It is clear that the petitioner has been fighting for his legitimate claim for over two decades. I am of opinion that this is not the way both the State Government and the Central Government should treat a freedom fighter. The very scheme has been envisaged for honouring our freedom fighters who are a vanishing category now. In fact by putting the petitioner to such trouble, we are disgracing ourselves. That being so, I am satisfied that respondents 2 and 3 shall not put any further hurdles on the petitioner's getting freedom fighter's pension. Accordingly, this writ petition is disposed of with the following directions: The 2nd respondent shall forward a recommendation regarding the eligibility of the petitioner for pension under the w.p.c.10537/05 7 SSS Pension Scheme on the basis of the documents, true copies of which are produced along with the writ petition, particularly Exts.P35, P16, P17 and P18. Such recommendation shall be forwarded to the 1st respondent within one month from the date of receipt of a certified copy of this judgment. On receipt of the same, the 1st respondent shall, within two months, pass final orders under the SSS Pension scheme. The petitioner shall produce a copy of the writ petition and all documents produced along with the same and subsequently, to the 2nd respondent along with a certified copy of this judgment for compliance. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge