IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 9025 of 2010(C) ------------------------- PETITIONER(S): --------------- ELIZABETH VARGHESE, AGED 71, W/O.VARGHESE, VENGATTOMPALLIL, EZHUPUNNA SOUTH P.O., CHERTHALA, ALAPPUZHA DISTRICT, KERALA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): --------------- 1. THE UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF HOME AFFIARS, NEW DELHI. 2. THE STATE OF KERALA, REP. BY THE SECRETARY, DEPARTMENT OF GENERAL ADMINISTRATION, SECRETARIATE, THIRUVANANTHAPURAM. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR R1 GOVT. PLEADER SHRI.M.A.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No.9025/2010. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE ORDER DTD.29.2.72. P2. COPY OF THE APPLICATION DTD.10.8.98. P3. COPY OF THE CERTIFICATE OF SRI.H.K.CHAKRAPANI DTD.30.6.2005. P4. COPY OF THE CONVICT REGISTER. P5. COPY OF THE CENTRAL PENSION ORDER DTD.18.6.2003. P6. COPY OF THE APPLICATION AND ORDER IN.P.E.NO.10/1122 M.E. OF THE C.J.M. COURT, ALAPPUZHA DATED 13.7.2005. P7. COPY OF THE CERTIFICATE OF THE SUPERINTENDENT, SUB JAIL, ALAPPUZHA DATED 9.7.98. P8. COPY OF THE ORDER OF THE UNDER SECRETARY OF THE GOVT. OF INDIA DTD.10.10.2003. P9. COPY OF THE REPORT OF THE TAHSILDAR DTD.20.11.72. P10. COPY OF THE JUDGMENT IN W.P.(C). No. 12456/2007 OF THIS COURT. P11. COPY OF THE ORDER OF THE UNDER SECRETARY TO GOVT. OF INDIA DTD.24.5.09. P12. COPY OF THE LETTER DTD.29.12.09 OF THE SECRETARY TO GOVT. P13. COPY OF THE AFFIDAVIT OF THE RESPONDENT DTD.18.1.2010 IN CONTEMPT CASE (C).NO.554/2009. P14. COPY OF THE ORDER DTD.4.2.2010 OF THE UNDER SECRETARY TO GOVT. OF INDIA. RESPONDENT(S)' EXHIBITS: R1. COPY OF THE SALIENT FEATURES OF THE SSS PENSION. sdk+ ///True copy/// P.A. to Judge S S.SIRI JAGAN, J. ================== W.P.(C).No. 9025 of 2010 ================== Dated this the 28th day of June, 2010 J U D G M E N T The petitioner is the widow of a freedom fighter. He is no more. In respect of his sufferings in the Independence struggle, the petitioner has been fighting for payment of pension under the SSS Pension Scheme of the Government of India for quite some time. Earlier the same was rejected and the petitioner approached this Court by filing W.P.(C).No.12456/2007, in which, by Ext.P10 judgment, this Court directed the Government of Kerala to reconsider the case of the petitioner for pension. At that time, the objection was that the petitioner's husband's name was not mentioned in the list of accused in the judgment in the criminal case in question. This Court found that the same is not absolute since many of the accused were underground and the list of accused shown in the said document cannot be treated as final as regards the others who were underground. Consequently, this Court directed reconsideration of the matter by the State Government. Thereafter, the 1st respondent issued Ext.P11 order dated 24.4.2009, rejecting the claim of the petitioner's husband for pension relying on the earlier order of the Government of Kerala refusing to recommend the case of the petitioner's husband for pension. Subsequently, by Ext.P12 dated 29.12.2009, the Government of Kerala recommended the case of the petitioner's husband for pension after reconsidering the matter in accordance with Ext.P10 judgment. Thereafter, by Ext.P14, the 1st respondent informed the petitioner that w.p.c.9025/10 2 recommendation of the State is not acceptable and, therefore, the claim for pension is rejected. The petitioner challenges those orders. 2. According to the petitioner, the petitioner has produced Ext.P3 personal knowledge certificate from a prominent freedom fighter along with Ext.P4 jail records of that person, which would show that the petitioner's husband had gone underground pursuant to the criminal case, and Exts.P6 and P7 “Non Availability of Records Certificates (NARC)”, which are the documents prescribed by the scheme for becoming eligible for pension. Insofar as those documents support the claim of the petitioner, the petitioner could not have been denied pension, is the contention of the petitioner. 3. A counter affidavit has been filed on behalf of the 1st respondent, which, as usual was prepared by some officer in the Ministry, which contains no proper averments controverting the averments of the petitioner, except producing a document styled as “Salient features of the SSS Pension Scheme”. From Ext.P14 and the counter affidavit, what I discern is that the objection of the 1st respondent is that no proper NARC has been produced by the petitioner. According to them, the NARC should read thus: “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.” Such an NARC has not been produced, appears to be the contention of the 1st respondent. w.p.c.9025/10 3 4. I have considered the rival contentions in detail. 5. At the outset, I have no doubt in my mind that an NARC of the kind mentioned by the 1st respondent is impossible to be obtained by any freedom fighter whatsoever. The contention of the petitioner is that her husband had gone underground pursuant to registration of the criminal case, PE.10/1122 ME of the Special Magistrate's Court, Alappuzha. The petitioner has produced Ext.P6 order from the Magistrate's court, whereby the application of the petitioner for records relating to the case has been rejected on the ground that the records of the case are not available, since it has been destroyed as per rules. Again the petitioner produced another certificate (Ext.P7) from the Jail Superintendent, which reads as follows: “This Sub Jail started functioning (brought under the administration control of the Jail Department) only from August, 1955. No records relating to the detained police station Lock Up (Now termed as Sub Jail) has been handed over to the Jail Department at the time of its opening. Hence I hereby certify that the detention particulars in respect of A.S.Varghese, Vengattom Pallil, Ezhupunna South P.O. Cherthala, Alappuzha District Alappuzha District (sic) who claims to have been detained in the defunct Lock up, Alappuzha during the year 1950 cannot be furnished in the absence of old records.” 6. I do not think that the petitioner could have produced any other NARC even as per the “Salient features of the scheme” as given by the respondents themselves. For a person claiming underground sufferings what is required is one personal knowledge certificate from a prominent freedom fighter proving that he had undergone jail sufferings of two years and an NARC. I am satisfied that Ext.P3 w.p.c.9025/10 4 personal knowledge certificate read with Ext.P4 extract from the convict register of the Central Prison, Thiruvananthapuram, regarding the jail sufferings of the person who issued the personal knowledge certificate and Exts.P6 and P7 are the documents necessary in accordance with the Scheme itself. As such, I am satisfied that the petitioner has complied with all the requirements, especially since, the respondents do not give any acceptable reason as to why the Personal Knowledge Certificate issued by Shri.Kittan Chakrapani is not acceptable. In view of the above findings, I am satisfied that the petitioner has sufficiently proved her claim for pension under the SSS Pension Scheme. In the above circumstances, Exts.P11 and P14 are quashed. The 1st respondent is directed to disburse pension to the petitioner under the SSS Pension scheme in respect of the underground sufferings of the petitioner's husband, late Sri.A.S.Varghese with effect from the date of receipt of the application. Arrears of pension shall be disbursed as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.9025/10 5