IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 WP(C).No. 25066 of 2009(C) -------------------------- PETITIONER(S): --------------- K.DEVAKI, AGED 77 YEARS, W/O.LATE K.KUTTAN, KUNNATH HOUSE, P.O.KANNIYAMPURAM, OTTAPPALAM-679 104, PALAKKAD DISTRICT. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003. 2. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, PALAKKAD. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 GOVT. PLEADER SRI. V.MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 25066/2009. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF COMMUNICATION DT. 23-6-1989. EXT.P2 DEATH CERTIFICATE DT. 13-6-1990. EXT.P3 ORDER DT. 27-8-1990. EXT.P4 COMMUNICATION DT. 20-12-1990. EXT.P5 APPLICATION DT. 20-12-2001. EXT.P6 COMMUNICATION DT. 13-8-1992. EXT.P7 DO. DT. 29-3-1993. EXT.P8 REPRESENTATION DT. 11-12-1994. EXT.P9 DO. DT. 29-12-1994. EXT.P10 COMMUNICATION DT. 28-2-1995. EXT.P11 REQUEST DT. 30-12-1999. EXT.P12 COMMUNICATION DT. 11-1-2000. EXT.P13 NOTICE DT. 22.11.2008. EXT.P14 JUDGMENT IN W.P.C.NO. 37145/2008. EXT.P15 REPORT SENT BY DISTRICT COLLECTOR. EXT.P16 SREPORT DT. 4-5-2009. EXT.P17 TRUE COPY OF ORDER DT. 30-7-2009. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 25066 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 12th day of August, 2010. J U D G M E N T While dealing with cases relating to claims for pension under the Swatantrata Sainik Samman Pension Scheme of the Government of India, a question which occurred to me often was, “is the object of the pension merely to dole out some money to give some help to some freedom fighters to spend the rest of their lives or is the object a nobler one?” I have asked this question to myself time and again. I am of opinion that while honouring them with a token help in their old age, we are honouring ourselves and our great nation, which is today the largest democracy in the world, only because of the sacrifice made by those great men. This sentiment has been expressed by many Judges of various High Courts and Supreme Court time and again. The observation of the Hon'ble Supreme Court in Mukundalal Bhandari v. Union of India, AIR 1993 SC 2127 is on point in this respect. Paragraph 4 of that judgment reads thus: “What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill-behoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependents and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. Hence, whatever the date on which the claimants make the applications, the benefit should be made available to them.” Again, in Gurdial Singh v. Union of India and others, 2001 (8) SCC 8, the Supreme Court remark thus: “7. Since the object of the Scheme is to honour and to mitigate the sufferings of the freedom fighters, a liberal and not a technical approach should be adopted – Hence, a claim under the Scheme should be determined on the basis of probabilities and not W.P.C. No. 25066/2009. -: 2 :- by applying the test of “beyond reasonable doubt”.” Very recently, in the decision in State of Tamil Nadu and another v. A. Manickam Pillai, 2010 (2) SCC 669, the Supreme Court held thus: “This appeal is an example and a reflection of the way we treat our freedom fighters inasmuch that while we applaud their contributions to the fight for freedom, deny them a pension, which, even if granted, amounts to a pittance with while many who apply are under financial distress, all without exception, wear it as a badge of honour and as a certificate of recognition of their efforts in the struggle for independence.” 2. The freedom fighters are a vanishing lot. More so are the certifiers whose certificates are necessary to prove their claim for pension. In order to enable them to get the pension, they are expected to produce proof regarding incidents that happened more than half a century ago. It does not require hair splitting arguments to conclude that it is very very difficult, if not impossible to find out such proof either in the form of primary evidence or even secondary evidence which are testimonials from other freedom fighters who are qualified to be certifiers. It is realising the said difficulty of finding proof that the scheme itself provides for proof of jail suffering, underground suffering etc., of freedom fighters, by producing co- prisoners' certificates (CPC) and personal knowledge certificates from known freedom fighters. In some classes of freedom fighters, even that may not be very easy. One such class is the INA veterans. Their contributions came late in the freedom struggle for a comparatively very short period. As such, it may not always be possible to find out co-prisoners having the required length of imprisonment of one year or more, which is the qualification for a W.P.C. No. 25066/2009. -: 3 :- certifier, prescribed in the SSS Pension Scheme. The case before me is a classic example of such a situation. 3. Petitioner's husband, Sri. K. Kuttan, was a soldier in the Indian National Army under our great hero, Netaji Subhash Chandra Bose. He suffered imprisonment for four months in the Changi jail and three months' imprisonment in the Bangkok jail. In 1973, he filed an application for pension under the Swatantrata Sainik Samman Pension Scheme. The same was not considered for want of a co- prisoners' certificate. By Ext. P1 dated 23-6-1989, he produced two co-prisoners' certificates and INA certificate and sought review of the earlier orders rejecting his claim for pension. In the meanwhile, he was granted pension under the Kerala Freedom Fighters' Pension Scheme. While so, as evidenced by Ext. P2 death certificate, he died on 8-6-1990, without the satisfaction of receiving pension under the SSS Pension Scheme. The petitioner herein, the widow of Sri. K. Kuttan, submitted Ext. P4 application dated 20-12-1990, which was followed up by Ext. P5 application in the prescribed form, on 20-12- 2001. While so, by Ext. P6 letter, the Government of India forwarded the applications of 30 applicants for freedom fighters' pension to the Accountant General, Kerala, in which the petitioner's name was included as sl. no. 15. The petitioner submitted Ext. P7 reminder dated 29-3-1993 to the 1st respondent Government of India seeking pension. The petitioner represented to the Vice President of India also. Ultimately, the petitioner filed W.P(C) No. 37145/2008, in which by Ext. P14 judgment, this Court directed consideration of the petitioner's claim for pension under the SSS Pension Scheme in respect of the jail sufferings of her husband in the Indian freedom struggle. Pursuant thereto, the matter was considered by the District Collector, Palakkad who, by Ext. P15, addressed to the Government of W.P.C. No. 25066/2009. -: 4 :- Kerala, recommended the petitioner's case for SSS pension. Based on the same, by Ext. P11 dated 4-5-2009, the Government also recommended the case of the petitioner for pension under the SSS Pension Scheme. But, the Government of India, by Ext. P17 order dated. 30-7-2009, rejected the claim of the petitioner on the ground that the CPCs produced by the petitioner are not acceptable under the scheme as the certifier's own imprisonment suffering is less than one year. The petitioner is challenging the said order in this writ petition. 4. The contention of the petitioner is that the petitioner and her husband did what practically could have been done in the circumstances by any INA soldier. According to the petitioner, in view of the fact that INA was in operation only for a very brief period towards the end of the freedom struggle, it is next to impossible to find a certifier who had completed one year of imprisonment as an INA prisoner. The petitioner and her husband have done the next best thing, namely, obtained certificates from two persons who themselves were receiving INA pension from the Central Government, but had only about 7 months' imprisonment as an INA soldier. The petitioner would contend that in view of the above circumstances and in view of the judgments of the Supreme Court on the subject, the petitioner's application should not be rejected on the basis of such hyper technical objections. The petitioner also specifically refers to an article in the 'Out Look' for the month of 6th June, 2005, titled “Heroes in Search of a Plaque”, wherein the sad plight of families of INA veterans has been picturised in graphic detail. In the same, the author, namely Sri. Saikath Datta, has stated that the INA soldiers had been at the receiving end at all times from not only the British but also from the Indian Government despite the fact that they, in fact, were the catalysts for the early end of the freedom struggle W.P.C. No. 25066/2009. -: 5 :- itself. Therein, it has been specifically stated that there are not any INA soldier who served an year in prison and therefore it is impossible for any one of them to issue a certificate going by the provisions of the SSS Pension Scheme. 5. The petitioner also relies on two decisions, one of the Madras High Court and the other of the Karnataka High Court dealing with similar claims of similar INA veterans, wherein also the applicants could not produce co-prisoners' certificates of persons having imprisonment of one year or more, despite which, the High Courts had directed to grant pension under the SSS Pension Scheme, ignoring the fact that the certifiers did not actually have one or more year's imprisonment. The petitioner therefore submits that the petitioner is eminently qualified for pension under the SSS Pension Scheme in respect of the jail sufferings of her husband as an INA soldier despite the technical difficulty of the certifiers having only less than one year's imprisonment. 6. A counter affidavit has been filed on behalf of the 1st respondent, wherein they strongly oppose the prayers of the petitioner. According to them, when the scheme prescribes that the claim for pension should be supported by a co-prisoner's certificate having one or more years' imprisonment, the Government cannot overlook the requirement of the provisions of the Scheme and give pension on the strength of a certificate of a certifier having less than one year's imprisonment. 7. I have considered the rival contentions in detail. 8. As I have stated in the beginning, by giving pension to freedom fighters, we are honouring ourselves and the Nation itself in recognition of the fact that those freedom fighters had sacrificed the better part of their lives for the country making it possible for us to W.P.C. No. 25066/2009. -: 6 :- live in a free India. Such sacrifice cannot be belittled while considering their applications for pension, the object of which is to honour ourselves and the Nation, by insisting that they should do the impossible to prove their eligibility. While doing so, I do not think that the Government should stick on to the provisions of the scheme to the letter and insist on scrupulous compliance with every small detail of the provisions. The fact that the provisions of the scheme themselves can be relaxed is clear from the various decisions of the Supreme Court, which I have already quoted in the beginning. Therefore, if otherwise the jail suffering of a freedom fighter can be ascertained on a preponderance of probabilities, on the basis of materials available on record, pension due to him or her should not be simply denied on technical grounds. 9. Here, the fact that the petitioner's husband was an INA soldier is no longer in doubt or dispute. His INA number is 19/2014/73/FF-INA (Palghat District). It is more or less admitted that he suffered 4 months' imprisonment in Changi jail and 3 months' imprisonment in Bangkok jail as an INA soldier. He has produced two co-prisoners' certificates, one by Sri. Karmel Gomaz, who had suffered imprisonment from 15th August, 1945 to more than March, 1946 as an INA soldier who was granted INA pension from the Central Government vide file No. 19/3716/81/FF/INA (Trivandrum) District. He has certified thus about the petitioner's husband: “I, therefore, solemnly state that Sri. K. Kuttan, son of Ayyappan, residing at Kunnath house, Thottakkara, P.O., Ottapalam, Palghat District, Kerala State is known to me personally, and he was in the INA, and was taken prisoner at Bangkok, and after undergoing 3 months detention there, he was brought to Singapore, and dated nil in the Changi Jail and suffered imprisonment for another four month.” W.P.C. No. 25066/2009. -: 7 :- Another certificate was also produced, namely, that of Sri. K. Gopala Pillai, who was granted INA pension from the Central Government vide File No. 19/2201/73/FF-INA, Quilon District, in which he had certified thus: “I, therefore, solemnly state that Sri. K. Kuttan, son of Ayyappan, Residing at Kunnathu house, Thottakkara P.O., Ottapalam, Palghat District, Kerala State is known to me personally, and he was in the IMA, and was taken prisoner at Bangkok, and detained in the Bangkok Jail, where, he suffered imprisonment with me as my co- prisoner for 3 months from 15th August 1945 to 15th November, 1945, and then he was transferred to Singapore.” The respondents have no case that the statement in the certificates is in any way untrustworthy or unreliable, except for the fact that the certifiers do not have one year's imprisonment. Taking into account the jail suffering of Sri. K. Kuttan as an INA soldier, the State Government has granted him pension under the Kerala Freedom Fighters' Pension Scheme. The District Collector, Palakkad had conducted enquiries on the application of the petitioner for pension in respect of jail sufferings of her husband and issued Ext. P15 recommendation holding that the petitioner's husband had, in fact, undergone 7 months' imprisonment while in the INA and that the claim of the petitioner for SSS pension can be granted. Based on that recommendation, by Ext. P16, the Government of Kerala had also recommended the petitioner's case for pension under the SSS Pension Scheme. Although the article in the Outlook may not be an evidence in the strict sense of Indian Evidence Act, I do not think that the same can be lightly brush aside for the purpose of grant of pension under the SSS Pension Scheme. That is a piece of evidence, which would go to show that it is next to impossible for anybody to find an INA veteran who had served an year of imprisonment. Further, the W.P.C. No. 25066/2009. -: 8 :- State Government had made elaborate enquiries through the District Collector and had found that the petitioner's husband had suffered imprisonment for 7 months. Similar circumstances had been considered by the Karnataka and Madras High Courts, wherein despite the technical infirmity in the certificate of the certifier of having only less than one year's imprisonment, the said High Courts relaxed the rules to direct grant of SSS pension to INA veterans. Those judgments are produced by the petitioner along with a memo dated 14-6-2010. In the Madras decision, namely, K. Arumugam v. Union of India, Writ Petition No. 19046 of 2001, the Madras High Court held as follows: “8. In the above circumstances, relying on the following judgments reported in (1) GURDIAL SINGH vs. UNION OF INDIA AND OTHERS, (2001) 8 SCC 8 (2) I.V.K. MALAICHAMY (deceased) AND ANOTHER vs. THE GOVERNMENT OF INDIA & OTHERS, (2001 Writ Law Reporter 549), this court has to arrive at decision so far as the issue concerned with the grant of Tamilnadu Scholar Pensions in favour of the petitioner is concerned. The relevant portion from the judgment cited first supra is as follows: “The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the scheme to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the scheme. It should not be forgotten that the persons intended to be covered by the scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the scheme. The case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of “beyond reasonable doubt”. (Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, W.P.C. No. 25066/2009. -: 9 :- reasonable and reliable evidence.” The relevant portion from the judgment cited second supra is as follows: “Taking note of the spirit and substance of the certificate issued by the co-prisoner Sri. P. Kakkan particularly when there is no averment in the counter affidavit filed by respondents 1 and 2 disbelieving the certificate as a whole, I am obliged to quash both the proceedings, namely, No. 13/O/Mu/37917/89 dated 23.7.1990 by the third respondent and No. 129/97/84/FF(S.2) dated 25.2.1984 by the first respondent with a direction to give the benefits of the scheme to the petitioner, who are legal heirs of V.K. Malaichamy (deceased) freedom fighter, within three months from the date of receipt of a copy of this order”.” Again in the decision of the Karnataka High Court in Sri. Krishnan Nair, S/o. Narayana v. Government of India, decided on 20th August, 2007, it has been held thus: “12. It is profitable to refer to the judgment of this Court in the case of B.K. Nagaraj v. Union of India, reported in 2004 (1) KCCR 31, wherein it is held that the grant of Freedom Fighter's Pension is an honour to those who have given the best part of their life to the country. Hence the approach should be to liberally interpret the scheme so that the real freedom fighter is not dishonoured by the technical approach and that he must feel really honoured; This position was reiterated following judgment of the Apex Court in the case of Mukundlal Bhandari v. Union of India, reported in AIR 1903 SC 2127. 13. It is also profitable to refer to the Division Bench judgment of the High Court of Judicature, Madras sin the case of R. Thangavelu v. Government of India and Anr. . The relevant portion of the judgment is extracted hereinbelow: 43. ... once either the State Government or the Central Government grants pension to a particular freedom fighter, he must automatically get the other pension either under the State or under the Central Government scheme without any further enquiry, on the claimants satisfying the guidelines, and the Government cannot reject the claim summarily that he is not a freedom fighter at all. 14. In support of his participation, the petitioner has produced the clinching documentary evidence-INA Pass Book and the Movement Order, dated 25.11.1945 passed by the British Military Authority for shifting the petitioner from one jail to another jail. Besides Sri. Puttiyadawan Krishnan Nair has issued the Co-Prisoner's Certificate. However, the respondent refused to accept it on the W.P.C. No. 25066/2009. -: 10 :- ground that the said certificate does not reflect one year of jail- suffering. In my considered view, such hyper technical approach is not warranted while considering the freedom fighter's application for the grant of pension. Further it is not in dispute that the said Sri. Putiyadavan Krishnan Nair himself is given the SSSP. Under these circumstances, there was no reason for the respondent to disbelieve Co-prisoner's Certificate issued by Sri. Puthiyadavan Krishnan Nair. 15. What stuns me most is the casual approach of the respondent. When the freedom fighter gives the vivid description of his struggle, the respondent has the audacity to state that the averments concern the petitioner and that the respondent does not want to make any comment on them. The relevant portion of the respondent's statement of objections is extracted hereinbelow: That with regard to the statements made by the petitioner in paragraph 1 of his petition that he is a aircraft engineer and while undergoing training at Malaysia during year 1943 he joined Indian National Army on the call of Netaji Subhash Chandra Bose and further that after completion of training he was sent to Burma- India border to fight British and thereafter he was taken as prisoner by British forces in Burma and thereafter he was detained for a period of 8 months, as all these averments concern the petitioner, the respondent does not want to make any comments on it. 16. It is expected and required of the respondent to examine the averments contained in the writ petition and thereafter make responsible assertions of either affirming or denying them. But the respondent-Central Government cannot take the stand that the averments concern the petitioner and that the respondent would not make any comments on them. Besides such an approach is in sharp contrast to Article 51A(b) of the Constitution of India which states that it shall be the duty of every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom.” I am inclined to follow those decisions to grant reliefs to the petitioner in this writ petition. I think that the situation should be read in the light of Article 51A(b) of the Constitution of India, wherein “to cherish and follow the noble ideals which inspired our national struggle for freedom” is prescribed as a fundamental duty of all citizens of India. I am of opinion that in view of the fact that the only objection against the grant of SSS Pension to the petitioner is a lack W.P.C. No. 25066/2009. -: 11 :- of one year's imprisonment for the certifiers, which is a very technical contention, the petitioner is entitled to succeed in this writ petition insofar as the petitioner has produced reliable other evidence also which probabilises the fact that her husband had undergone 7 months' jail suffering as an INA prisoner, which has also been found to be proved on enquiry by the State Government. It is therefore declared that the petitioner, as the widow of such a freedom fighter, is eligible for pension under the Swatantrata Sainik Samman Pension Scheme. Accordingly, I direct the 1st respondent to sanction pension under the Swatantrata Sainik Samman Pension Scheme to the petitioner in recognition of her husband's jail suffering in the freedom struggle. Arrears from the date of Ext. P5 application, namely, 20-12- 2001, shall be paid as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/