IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 37615 of 2008(C) -------------------------- PETITIONER(S): --------------- SANTHAMMA VASU, W/O.VASU, AGED 63 CHALAYIL, MUHAMMA P.O. ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): --------------- 1. THE UNUION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, KHAN MARKET, NEW DELHI. 2. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF GENERAL ADMINISTRATION SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.MANOJ RAMASWAMY, ADDL.CGSC FOR R1 R2 BY GOVERNMENT PLEADER SHRI SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF APPLICATION DT.2.6.98 EXT.P2-TRUE COPY OF THE STATE PENSION ORDER DT.13.1.92 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA TO THE PETITIONER'S HUSBAND EXT.P3-TRUE COPY OF REPRESENTATION DT.17.10.2003 EXT.P4-TRUE COPY OF CO-PRISONER'S CERTIFICATE ISSUED BY SHRI P.A. SOLOMON, EX.MP DT.24.8.2005 EXT.P5-TRUE COPY OF THE COPY APPLICATION AND THE ORDER IN CASE NO.PE 8/1122 BY CJM COURT, ALAPPUZHA DT.19.9.2005 EXT.P6-TRUE COPY OF LETTER OF THE UNDER SECRETARY TO GOVT. DT.28.1.2004 EXT.P7-TRUE COPY OF ORDER OF DO. DT.3.2.2005 EXT.P8-TRUE COPY OF LETTER OF THE DISTRICT COLLECTOR, ALAPPUZHA DT.14.3.91 EXT.P9-TRUE COPY OF ORDER DT.27.4.2007 // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37615 of 2008-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of August, 2010. JUDGMENT The petitioner is the widow of late Shri C.K. Vasu who was an active participant of the Punnapra - Vayalar struggle. It is averred that in Case No.P.E.8/1122 (ME) the police arrested him and kept in Sub Jail, Alappuzha from 26.10.1946 to 28.10.1947 as an under trial prisoner. Ext.P1 is the application submitted by the husband of the petitioner for grant of pension under the SSS Pension Scheme. Ext.P2 is the copy of the order granting pension under the Kerala Freedom Fighters' Pension Scheme. Presently, the first respondent has rejected the claim as per Ext.P9 order. Mainly it is stated that the petitioner's husband had not produced any record-based primary evidence and he has not furnished a valid Non- availability of Records Certificate (NARC) from the State Government. In the co-prisoner's certificate the certifier Shri P.A. Solomon has stated that the deceased Vasu was a co-prisoner from October 1946 to October, 1947 while he himself was in jail only from February 1947 to December 1947. The letter dated 13.11.2006 forwarded by the State Government without recommending the application, is also relied upon. Learned counsel for the wpc 37615/2008 2 petitioner submitted that in the absence of primary evidence, the petitioner is entitled to rely upon the NARC from the Chief Judicial Magistrate's Court, a copy of which has been produced as Ext.P5, and similar documents have been accepted as valid by this Court in other judgments. It is therefore submitted that the insistence of production of a valid NARC from the State Government itself cannot be justified. Reliance is placed on the judgment of this Court in W.P.(C) No.37624/2008 in that regard. 2. With respect to the alleged discrepancy in the certificate issued by the certifier Shri P.A. Solomon, it is pointed out that the deceased husband of the petitioner was in jail for the period from October, 1946 to October, 1947, whereas the certifier was in jail from February 1947 to December 1947. In all cases the period of under-trial imprisonment need not be identical. Even if the certifier was in jail only from February to December, 1947, for granting pension, six months imprisonment alone will be required and therefore it cannot affect the genuineness of the certificate. What is certified is the jail term of the deceased husband of the petitioner and therefore it is pointed out that the finding in Ext.P9 that the different jail terms makes doubt about the genuineness of the claim, is not sustainable. I find force in the above submission. 3. Merely because the deceased husband of the petitioner was in jail wpc 37615/2008 3 from October 1946 to October, 1947, whereas Shri P.A. Solomon, the certifier was in jail from February 1947 to December, 1947, the claim for pension cannot be rejected as doubtful. He is a competent certifier with regard to the aspect of jail term of the petitioner's husband, and six months alone is required for granting pension. The periods of conviction, or as under-trial prisoner need not be identical in all cases. 4. The State Government unfortunately did not recommend the application on the plea that in the representation submitted by the deceased husband, he has not mentioned the case number in which he was forced to suffer imprisonment. This is too flimsy a reason for not recommending his claim. What is relevant is a valid co-prisoner's certificate wherein the case number has been mentioned clearly. It is not a requirement that in subsequent correspondences the case number must be there for considering the validity of the application. In ever so many cases this Court and the Supreme Court have taken the view that the application of a freedom fighter should be considered liberally and taking into account their services to the country as such. Such technical reasons which are too flimsy, ought not have been projected by a State Government. This is so, especially since the petitioner's late husband is a recipient of the State pension, which evidences the fact that he was a genuine freedom fighter. wpc 37615/2008 4 5. One of the main aspects pointed out by the learned counsel for the petitioner is that the deceased husband of the petitioner was a member of the District Advisory Committee for scrutinising the applications for grant of State pension and Ext.P8 is a document in support of the above plea. Ext.P8 is the copy of the notice issued by the Collectorate for convening a meeting of the said Committee, wherein serial No.1 is the name of the husband of the petitioner. That notice was in respect of a meeting held on 20.3.1990 of the District Advisory Committee. His importance as a freedom fighter is evident from it. 6. In spite of the above, it is strange as to how the State Government did not recommend the application on the plea that the petitioner has not produced any official records in support of the claim. It is not the case of the Government that official records are available, in respect of all cases relating to Punnapra Vayalar Struggle even now, and in the case of participants like late Shri Vasu. 7. The other objection of the Central Government appears to be with regard to the validity of the NARC from the Chief Judicial magistrate's Court. An identical issue was considered by this Court in the judgment in W.P.(C) No.37624/2008, wherein with regard to the order of the Chief Judicial Magistrate's Court, Alappuzha in case No.PE 8/1122 (ME), the wpc 37615/2008 5 sufficiency of the same has been explained in the following words: “So, if at all any records are available in respect of that case it can only be before the Chief Judicial Magistrate's Court. That court has stated that the records of the year 1122 have been destroyed. I am of opinion that, that is a valid NARC in respect of PE No.8/1122. Further more, this court and the Supreme Court have time and again held that wherever records are to be produced by freedom fighters from Government offices it is for the Government to see that certificates or NARCs are obtained from those Government offices by the Government themselves. Petitioner has evidently done the only thing what the petitioner could do in the circumstances, ie. to obtain a certificate from the concerned magistrate's court to the effect that the records of the case have been destroyed. Therefore, I am not satisfied that the reason mentioned in Ext.P8 to reject the petitioner's application for pension is a valid one. In the counter affidavit filed by the 1st respondent there is no reason mentioned as to why Ext.P5 Co-prisoner's certificate of ex-member of parliament Sri P.A. Solomon cannot be accepted. That being so, I hold that Ext.P5 Co-prisoner's certificate is sufficient to prove to the petitioner's case for pension in accordance with the scheme, coupled with the NARC.” Identical is the circumstances herein also. As regards the availability of records in a criminal case is concerned, the concerned Court alone can issue the NARC and it cannot be said that the State Government is the sole wpc 37615/2008 6 authority to issue the NARC in such cases. 8. In that view of the matter, the petitioner is entitled to succeed in this writ petition. Therefore, the writ petition is allowed and Ext.P9 order is quashed. There will be a direction to the State Government to forward a fresh verification-cum-entitlement report after considering all aspects, in the light of the above findings with due recommendation, within a period of six weeks from the date of receipt of a copy of this judgment, to the Central Government. The Central Government will pass appropriate orders in the matter on the basis of the recommendation made by the State Government and the documents produced, within a further period of three months. The claim of the petitioner for arrears of pension from the date of receipt of application, will also be considered. No costs. (T.R. Ramachandran Nair, Judge.) kav/