IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 WP(C).No. 3655 of 2010(F) ------------------------------------- PETITIONER: ------------------- PULUKKOOL KRISHNAN NAIR, S/O.KRISHNAN NAIR, PAYYAVOOR P.O., KANNUR DISTRICT - 670 633. BY ADVS. MR.V.C.JAMES, MR.JOBY JOSEPH. RESPONDENTS: ------------------------ 1. THE UNION OF INDIA, REPRESENTED BY ITS UNDER SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS (FFP DIVISION) LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. THE DISTRICT COLLECTOR, KANNUR. R1 BY MR.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA, R2 & R3 BY GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3655/2010-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE EXTRACT OF UNDERTRIAL PRISONERS REGISTER ISSUED BY THE SUPDT. OF CENTRAL PRISON, KANNUR. EXT.P.2: COPY OF THE COMMUNICATION DTD. 22/07/1998. EXT.P.3: COPY OF THE COMMUNICATION NO. REF. M. 5. 55307/99 DTD. 07/02/2000. EXT.P.4: COPY OF THE REPRESENTATION DTD. 10/01/2010 BY THE PETITIONER. EXT.P.5: COPY OF THE ORDER NO. R. DIS. 53536/73 DT. 20/11/1973 OF THE DISTRICT COLLECTOR, KANNUR. EXT.P.6: COPY OF THE INVITATION CARD AND PROGRAMME NOTICE OF INDEPENDENCE DAY CELEBRATION 1975. EXT.P.7: COPY OF THE COMMUNICATION NO. F6-58249/74 DT. 07/08/75. EXT.P.8: COPY OF THE COMMUNICATION NO. 3745/FFP.A2/94/GAD DT. 24/01/1994. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3655 of 2010-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of March, 2010. JUDGMENT The petitioner is seeking the benefit of Swathanthratha Sainik Samman Pension Scheme from the Central Government. He is a senior citizen aged 89 years. Aggrieved by the inaction in the matter, this writ petition has been filed. 2. The petitioner had participated in the Kavumbhai struggle which is recognised for grant of pension as per letter No.61/97/FF (P) dated 10.1.1998 of the Govt. of India. In the said struggle he suffered 10 months imprisonment. True copy of the extract of the under trial prisoners' register is produced as Ext.P1 to show that he had suffered imprisonment for the period from 16.1.1947 to 29.10.1947. 3. The petitioner submitted his application during 1998 through proper channel with all the certificates. He was given a reply by the Govt. of India, as per Ext.P2 dated 22.7.1998 informing that as soon as the State Government's report is received, further action will be taken by the Government of India. Even though the District Collector forwarded the same to the State Government, the State Government took the stand that the wpc3655 /2010 2 petitioner is only an under trial prisoner and therefore he is not entitled for the grant of pension. The above stand of the State Government is reflected in the reply given by the District Collector to the petitioner, as per Ext.P3, but no orders have been communicated so far. Thereafter, he filed a further representation before the State Government as per Ext.P4. 4. The petitioner is a recipient of Thamrapathra and in support of the plea, he has produced Exts.P6 and P7. Earlier, the application submitted by the petitioner was returned by Ext.P8 stating that Kavumbhai struggle has not been recognised. Now, that position has been changed evidently, in the light of the communication of the Central Government in the matter. 5. Learned counsel for the petitioner submitted that in the light of the decision of a Division Bench of this Court in Union of India v. Lonan Benjamin (2002 (1) KLT 46), the stand taken by the District Collector and the State Government that imprisonment as under-trial prisoner, cannot be counted for getting SSS Pension, cannot be supported. 6. In the above case, the Division Bench, after considering the scheme for grant of SSS Pension, held thus: “The object of Ext.P1 scheme was to provide succour to the aged and infirm freedom fighters and their dependents in recognition of their sacrifice for the mother land. Going by the settled cannons of wpc3655 /2010 3 construction, we are bound to adopt an interpretation which subserves best the object of the scheme. The freedom fighters were oppressed and harassed by criminal cases, house arrest etc. To evade the process of law of the oppressive Government, many went underground. Undoubtedly, they are eligible for pension. Several others were arrested and false cases were foisted upon them. they languished in jail as under trial prisoners and some of them later suffered imprisonment as convicts also. Many false cases have ended in acquittal of the freedom fighters. If the interpretation advanced by the appellant is accepted, those who suffered imprisonment as a result of foisting of false cases which ended in their acquittal will be ineligible for the pension. Having regard to the laudable object of the scheme, the framers of it cannot be held to have such an intention. the intention of the framers of the scheme, can be gathered by reading the scheme as a whole. Those who suffered internment in their house, and those who evaded arrest and became proclaimed offenders or carried an award for arrest are made eligible for pension. It cannot be said that the framers of the scheme did not intend the benefit of the scheme being extended to those who suffered incarceration, owing to foisting of false cases, as under trial prisoners. An intention cannot be attributed to the framers of the scheme that the eligibility of the prisoners should depend on the success or otherwise of the prosecution in securing a conviction. The main clause 4(a) speaks of imprisonment only. It does not specify whether it should be as convict or as under trial prisoner. Going by the plain meaning of the words, the petitioners are eligible for wpc3655 /2010 4 pension. When we read the scheme as a whole, in the light of the said principles, we have no hesitation to hold that the freedom fighters concerned in these cases are eligible for pension. On their death, their dependents are eligible.” Accordingly, it was held that the petitioners in that case are eligible for pension. In fact, the Division Bench has noted in para 5 that the freedom fighters were being oppressed and harassed by criminal cases, house arrest etc. and the intention of the scheme cannot be forgotten. In fact, it was also held in para 7 that when persons under internment in the house and those who went underground evading arrest are eligible for pension, those who were actually arrested and suffered torture as under trial prisoners, will be denied pension on the basis of failure of the prosecution to prove the case against him. It was held that there will be gross injustice in such cases. 7. In the light of the above legal position, the decision by the State Government as reflected in Ext.P3 communication issued by the District Collector, cannot be supported. Therefore, the application of the petitioner cannot be rejected on the ground that he is only an under trial prisoner. Therefore, on the above ground, the State Government cannot refuse to forward the verification cum entitlement report and recommend the case. 8. Hence, Ext.P3 is quashed. There will be a direction to the second wpc3655 /2010 5 respondent to forward to the first respondent the verification cum entitlement report within a period of one month from the date of production of a copy of this judgment, along with the documents, annexures and the application for grant of pension. There will be a further direction to the first respondent to take appropriate decision in the matter after considering various aspects, within three months from the date of receipt of documents from the State Government. The writ petition is disposed of as above. The petitioner will forward copies of this judgment to respondents 1 and 2 for compliance. No costs. (T.R. Ramachandran Nair, Judge.) kav/