IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 21396 of 2006(V) -------------------------- PETITIONER: ------------ B.AMBUJAKSHY, AGED 88, W/O.RAMANKUTTY, VELIYIL, NORTH ARYAD, ALAPPUZHA, KERALA. BY ADV. SRI.J.OM PRAKASH RESPONDENTS: ------------- 1. THE UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA, FREEDOM FIGHTER'S DIVISION, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIATE,THIRUVANANTHAPURAM. R1 BY ADV. SRI.C.S.MANILAL R2 GOVERNMENT PLEADER SMT. N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4/4/2008, THE COURT ON 04/04/2008 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 19.12.1986 GRANTING PENSION TO THE PETITIONER EXT.P2-TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 22.11.1993 EXT.P3-TRUE COPY OF THE CERTIFICATE ISSUED BY THUNDATHIL KUNJU KRISHNA PILLAI DATED 5.4.1980 EXT.P4-TRUE COPY OF THE CERTIFICATE ISSUED BY SHRI V.K. KARUNAKARAN DATED 15.7.1984 EXT.P5-TRUE COPY OF THE CERTIFICATE ISSUED BY SHRI S. KUMARAN EX .M.P. DATED 3.7.1991 EXT.P6-TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 15.12.2000 EXT.P7-TRUE COPY OF THE CERTIFICATE DATED 11.1.2001 OF THE SUPERINTENDENT, SPECIAL SUB JAIL, ALAPPUZHA. EXT.P8-TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 27.4.2005 EXT.P9-TRUE COPY OF THE COPY APPLICATION AND THE ORDER IN CASE nO.PE 6/1114 DATED 18.4.2003 OF THE CJM COURT, ALAPPUZHA. EXT.P10-TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 26.7.2006 //TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) NO.21396 of 2006-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of April, 2008. JUDGMENT The petitioner is the widow of late Ramankutty who was a freedom fighter. It is submitted that the warrant of arrest was issued against him in Case No.P.E.6/1114 M.E., pursuant to which he was kept in the jail from August 1942 to October 1943. He died in the year 1984. As per Ext.P1, the District Collector granted Kerala Freedom Fighters Pension to the petitioner. By Ext.P2, she filed an application for pension under the SSS Pension Scheme. Co-prisoners' certificates from competent certifiers like Shri V.K. Karunakaran, Shri Thundathil Kunju Krishna Pillai Ex.M.L.A., and Shri S. Kumaran Ex. M.P. were produced. The application was rejected by Ext.P6. Again, the petitioner filed a further representation to review the above order, enclosing a certificate from the Superintendent of Sub Jail, Alappuzha. It was followed by Ext.P8 representation and Non-availability of Records Certificate, Ext.P9. Ultimately, she approached this court in Writ Petition No.1607/2005. Pursuant to the direction issued in the said case, the matter was again considered and rejected by Ext.P10. Ext.P10 is challenged in this writ petition. WPC 21396/2006 -2- 2. The order Ext.P10 shows that the application was rejected for want of primary evidence, a valid NARC, and positive recommendation by the State Government. It was also held that the certificates from the certifiers are not acceptable. 3. Learned counsel for the petitioner invited my attention to the fact that in the absence of primary evidence, the certificate produced from Shri Thundathil Kunju Krishna Pillai Ex. M.L.A. was acceptable. It is submitted that going by the scheme, in case the certifier happens to be a sitting or Ex.M.P./M.L.A., only one certificate is required. It is also submitted that going by the Scheme, the certifiers who had a minimum of one year jail suffering, are competent certifiers. A reading of the scheme as reproduced in Ext.P10, supports the above argument. 4. Learned Govt. Pleader submitted, relying upon the averments in the counter affidavit, submitted that the State Government did not recommend the application for want of documentary evidence. It is also pointed out that certificates from Shri V.K. Karunakaran and Shri S. Kumaran, Ex.M.P. are not acceptable for want of details. It is also pointed out that Shri Thundathil Kunju Krishna Pillai is not a competent certifier. 5. Shri Thundathil Kunju Krishna Pillai was an M.L.A. The certificate Ext.P3 shows that he had suffered imprisonment during the WPC 21396/2006 -3- freedom struggle and was lodged in Sub Jail, Alappuzha during the period from 1942 to 1943. A perusal of the records relating to the application of the petitioner made available by the learned Govt. Pleader, shows that the case of the petitioner was considered by the Advisory Committee and it was recommended also. Then, the other issue is whether Shri Thundathil Kunju Krishna Pillai, then an M.L.A., is a competent certifier. Even though it is stated that his certificate is not acceptable, no Government Order is produced in support of the above contention. Being an Ex. M.L.A., he was a competent certifier. Therefore, even though primary evidence as such is not available, since there is a certificate issued by Shri Thundathi Kunju Krishna Pillai, supported by the NARC and in the light of the positive recommendation by the District Advisory Committee, the State Government ought to have forwarded a due verification-cum-entitlement report showing the recommendation. Therefore, the refusal of the State Government to recommend the application is not correct. 6. In the above view of the matter, Ext.P10 is quashed. The State Government will reconsider the matter in the light of the observations and relevant findings made above. The applicant was granted pension under the Kerala Freedom Fighters Pension Rules also. 7. Therefore, a fresh verification-cum-entitlement report showing the WPC 21396/2006 -4- recommendation shall be forwarded by the State Government after analysing the certificates produced and in the light of the NARC produced by the petitioner. The needful shall be done within a period of two months from the date of receipt of a copy of this judgment. On receipt of the fresh recommendation from the second respondent, the first respondent will reconsider the matter in accordance with law and pass final orders within a further period of two months from the date of receipt of records from the State Government. In the event of grant of pension, the entitlement of the petitioner for arrears from the date of receipt of the application, will also be considered. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/ WPC 21396/2006 -5- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 6th March, 2008.