IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 WP(C).No. 15199 of 2008(H) ------------------------ PETITIONER : --------------------- ANANDAVALLY, W/O. LATE P.K.KARUNAKARAN, POOMKAVELIYIL, THURAVOOR SOUTH P.O., CHERTHALA, ALAPPUZHA DT. BY ADV. SRI. K.K. SATHISH RESPONDENT : ----------------------- UNION OF INDIA, REPRESENTED BY THE UNDER SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003 BY ADVS. SRI. S. KRISHNAMOORTHY, CGC SRI.P.R.LESLIE STEPHEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 15199 of 2008(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 INVITATION LETTER ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA VIDE NO. F6-2733/73 DATED 8-8-1975 TO THE PETITIONER'S LATE HUSBAND TO RECEIVE THAMRAPATHRA. EXT.P3 : COPY OF THE ORDER NO. R.DIS.1154/72/F6 DATED 29-2-1972 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA. EXT.P4 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR GRANT OF SSS PENSION DATED 10-7-1998. EXT.P5 : COPY OF THE JUDGMENT DATED 21-8-2007 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO. 190/2005. EXT.P6 : COPY OF THE LETTER NO. 23436/FFP A2/2005/GAD DATED 27-10-2007 ISSUED BY THE STATE GOVT. TO THE RESPONDENT. EXT.P7 : COPY OF THE COMMUNICATION NO. 52/CC/K/6/2005-FF/SZ DATED 6-2-2008 PASSED BY THE RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF THE LETTER DATED 6-2-2008. //TRUE COPY// P.A. TO JUDGE Mn S.SIRI JAGAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C) No.15199 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March, 2011 J U D G M E N T An unfortunate widow of a freedom fighter, who sacrificed his youth for this country in the independence struggle is the petitioner herein, who is approaching this Court for the second time for the relief of payment of pension under the “Swatantrata Sainik Samman Pension” scheme (SSS Pension Scheme for short). With the help of primary evidence to prove the eligibility for pension under the SSS Pension Scheme, the petitioner approached the State Government. They refused to recommend the claim of the petitioner to the Central Government which is the first step for enabling the the petitioner to claim pension under the SSS pension scheme. 2. The petitioner approached this Court by filing W.P.(C). No. 190/2005. This Court, by Ext.P5 judgment, found that the petitioner is eligible for such pension. In that writ petition, the Union of India was also a party. But instead of directing the Union WPC.No.15199 of 2008 : 2 : of India to grant the pension, this Court found it fit to direct the State Government to forward recommendation to the respondent for grant of pension under SSS pension scheme and directed the respondent herein to consider and pass appropriate orders considering such recomendation. By Ext.P6 the State Government forwarded their recommendation, in which it is stated that the District Collector did not recommend the petitioner's claim, but since this Court has directed to recommend the claim of the petitioner they are recommending the same. 3. As is usually the case, the respondent by Ext.P7 order summarily rejected the claim of the petitioner. The petitioner is challenging Ext.P7 order seeking the following reliefs: “i.) declare that the petitioner is entitled to get the benefit of SSS Pension due to her late husband; ii) call for the records leading to the issue of Ext.P6 and quash its original by issue of a writ of certiorari; iii) issue a writ of mandamus or other appropriate writ, direction or order compelling the respondent to grant the benefit of SSS Pension to the petitioner due to her late husband with the actual arrears from the date of receipt of Ext.P4 application dated 10.7.1998 in the light of the dictum laid down by the Division Bench of this Hon'ble Court in Union of India Vs. Radhamony reported in (2005 (4) KLT WPC.No.15199 of 2008 : 3 : 27);” 4. The Central Government Counsel with the help of a counter affidavit, filed stoutly opposes the prayers in the writ petition. Arguments are advanced at length to convince this Court that the petitioner is not entitled to the claim for pension. 5. I have considered the rival contention in detail. 6. I am of opinion that for allowing this writ petition, all what I have to do is only to follow Ext.P5 judgment. Ext.P5 judgment reads as follows: “The petitioner is the widow of late Shri P.K. Karunakaran who had actively participated in the Punnapra – Vayalar Movement during the freedom struggle. He was arrayed as 6th accused in case No.C.C.18/125ME on the file of the First Class Magistrate, Cherthala. On 13.12.1949 he was convicted and sentenced to undergo one year simple imprisonment and he had undergone imprisonment in Central Prison, Trivandrum for a period of 8 months from 16.1.1950 to 16.9.1950. He was granted a remission of two months and 26 days at that time. 2. Ext.P1 is the true copy of the extract of the convict register produced from the Central Prison, Trivandrum duly certified by the Superintendent, Central Prison, Trivandrum. Ext.P2 is the letter dated 8.8.1975 issued by the District Collector, Alappuzha informing the late husband of the petitioner that in view of his sufferings during the freedom struggle for the independence of the country, he has been honoured by grant of Thamrapathra and he has also been invited to receive the same in the function to be held on 15.8.1975. Ext.P3 is the order granting pension under the Kerala Freedom Fighters' Pension Rules, with effect from 1.4.1971. He died on 23.5.1985 and the petitioner is getting the dependent family pension under the scheme as per WPC.No.15199 of 2008 : 4 : order dated 2.8.1985 of the District Collector, Alappuzha. 3. Punnapra – Vayalar Struggle was recognised by the Government of India as part of National Freedom struggle with effect from 20.1.1998. The petitioner submitted Ext.P4 application dated 10.7.1998 for SSS Pension. Since no action is being taken by the State Government to forward due recommendation, the petitioner has filed this writ petition. 4. Union of India has filed a counter affidavit stating inter-alia that the recommendation of the State Government is mandatory and such a report is not available in the Ministry. On behalf of the second respondent, a counter affidavit has been filed. In paragraph 4 of the same, it is stated that the claim of the petitioner in Ext.P4 is related to case No.C.C 18/125 ME. As this is not included in the Register of Punnapra – Vayalar cases kept in the office of the District Collector, Alappuzha, the District Collector had not recommended the application to Government. 5. Learned counsel for the petitioner points out that the late husband of the petitioner was granted Kerala Freedom Fighters' Pension as per Ext.P3 for his participation in the Punnapra – Vayalar Struggle. He was also honoured by granting 'Thamrapathra' recognising his participation in that struggle which is evidenced by Ext.P2. Therefore, it is submitted that the stand now taken in the counter affidavit is totally without any justification. 6. I see force in the above submission made by the learned counsel for the petitioner. It is undisputed that he was granted pension by the State Government by Ext.P3 for the part played by him in the Punnapra – Vayalar Struggle, evidently. That assertion of the petitioner has not been denied in the counter affidavits. He has also been honoured by grant of 'Thamrapathra' and the letter issued by the District Collector itself recognised the laudable part played by the late husband of the petitioner in the freedom movement. The stand now taken in the counter affidavit therefore is totally unjustified. Ext.P1 shows that the offence leading to the imprisonment is under Section 9(1) of Ordinance V of 1125. The authorities should have applied their mind to the relevant circumstances leading to the grant of Kerala Freedom Fighters' Pension and 'Thamrapathra' and should have forwarded the recommendation to the Central Government without harping on such technicalities. When there is already grant of Freedom WPC.No.15199 of 2008 : 5 : Fighters' Pension considering the participation of the late husband of the petitioner in the freedom struggle and as it is even now continued in favour of the petitioner, refusal to recommend the same for Central pension is un-understandable. May be that the schemes are distinct and different, but the State after recognising his sufferings related to the very same struggle, cannot refuse to recommend the application. It is for the Central Government to consider the claim. 7. Therefore, there will be a direction to the second respondent to forward the verification-cum-entitlement report duly recommending the case of the petitioner for grant of pension under the SSS Pension Scheme, within a period of six weeks from the date of receipt of a copy this judgment. On receipt of the same, the first respondent shall pass appropriate orders within a further period of two months. The claim of the petitioner for payment of arrears with effect from the date of receipt of Ext.P4 application dated 10.7.1998 shall also be considered by the first respondent, in the event of sanction of pension. The writ petition is disposed of in th above terms. No costs.” From the said judgment, it is abundantly clear that this Court was fully convinced that the petitioner is entitled to pension under the SSS Pension scheme in respect of the sufferings of the petitioner's late husband in the Punnapra-Vayalar freedom struggle. It is after entering a specific finding that the petitioner is entitled to SSS pension that this Court directed the State Government to recommend the case of the petitioner for grant of pension, to the respondent. The respondent, ignoring the findings in Ext.P5 WPC.No.15199 of 2008 : 6 : judgment, has wrongly rejected the claim of the petitioner on the ground that the recommendation of State Government is not proper and that the petitioner had not proved her claim by producing reliable documents. I am of opinion that after having been a party to Ext.P5 judgment and having suffered the said judgment, which has become final, the respondent cannot be heard to contend that the petitioner is not entitled to the SSS pension. Of course, perhaps Ext.P6 recommendation of the Government may not strictly be in accordance with the procedure prescribed under the scheme in so far as what has been stated in Ext.P6 is that they are recommending the claim only because this Court directed to do so. I am of opinion that such an attitude of Government of Kerala amounts to ridiculing this Court in so far as that means that although we are not agreeing with the judgment, they are recommending the case of the petitioner since this court has directed so. The above act is unbecoming of a democratic Government who is bound by Rule of Law. It is all the more undemocratic for the Government of India to ignore Ext.P5 Judgment, in which they were also a party, to deny WPC.No.15199 of 2008 : 7 : relief to the petitioner. In view of finding in Ext.P5 judgment on the basis of specific reasoning in respect of same, neither the State Government nor the Central Government could have taken any decision contrary to those findings, which actually the State Government and the Central Government have done, which demonstrates scant respect for the rule of law, to say the least. 7. Of course, the learned Central Government counsel, relying upon the decision of Supreme Court in Union of India Vs. Mohammed Rawther 2007 (4) KLT 1005 SC, would argue that even if this Court finds that the petitioner is eligible for the claim, the decision should be left to the respondent since this Court cannot encroach upon the functions of the Government. I am of opinion that, that would be applicable only to a Government which takes judgments of this Court in the right spirit. The respondent has not chosen to do so even after having been a party to Ext.P5 judgment. I am not inclined to trust the respondent again to allow the claim of the petitioner in view of the past experience also of the same Government in similar cases. In fact, in a case where two Single WPC.No.15199 of 2008 : 8 : Benches categorically found a freedom fighter eligible for pension, which findings were confirmed by a Division Bench, the very same Government rejected the claim, in respect of which another writ petition came, which was allowed with very serious strictures against the officer concerned. Further it is a regular practice that such judgments are complied with only after the beneficiary files a Contempt Case also. In view of such past experiences I am not inclined to trust the respondent to pass orders in favour of the petitioner. The petitioner is already 78 years old and she is not in a position to afford the luxury of another protracted litigation, if the respondent again rejects her claim. In so far as in Ext.P5 judgment the entitlement of the petitioner has been categorically found, which finding has become final, I do not think that anything further is necessary in order to enable the respondent to sanction and pay freedom fighters' pension to the petitioner under the SSS Pension scheme. Accordingly, I allow the writ petition and direct the respondent to sanction and pay freedom fighters' pension to the WPC.No.15199 of 2008 : 9 : petitioner in accordance with the SSS Pension scheme with effect from 10.7.1998, which is the date of application by the petitioner. Orders shall be passed and arrears paid to the petitioner as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. In view of the recalcitrant attitude of the respondent in this case, in not granting pension to the petitioner despite Ext.P5 judgment I am inclined to award costs also. Accordingly, I direct the respondent to pay to the petitioner Rs.25,000/-(Rupees twenty five thousand only) as costs, which shall be recovered from the person who passed Ext.P7 order, and shall not be debited to the exchequer. sd/- (S.SIRI JAGAN, JUDGE) kp