IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 15TH NOVEMBER 2010 / 24TH KARTHIKA 1932 WP(C).No. 12538 of 2010(N) --------------------------------------- PETITIONER: ------------------- BHARGAVI, W/O.VELU MADHAVAN, AGED 81, PARACHERIL, MUHAMMA P.O, ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH. RESPONDENTS: ------------------------ 1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE STATE OF KERALA, REPRESENTD BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY SHRI.GEORGE ZACHARIA, C.G.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12538/2010-N: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION DTD. 09/03/98. EXT.P.2: COPY OF THE ORDER OF THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 13/10/72. EXT.P.3: COPY OF THE REPORT NO.12583/72 DTD. NIL. OF THE TAHSILDAR, CHERTHALA ON THE APPLICATION OF THE PETITIONER. EXT.P.4: COPY OF THE R.2. REFUSED TO RECOMMEND THE APPLICATION AND IT WAS INFORMED BY THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 23/10/2003. EXT.P.5: COPY OF THE REVIEW PETITION DTD. 22/11/2005. EXT.P.6: COPY OF THE CERTIFICATE ISSUED BY THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM DTD. 26/10/2005. EXT.P.7: COPY OF THE REPRESENTATION DTD. 06/01/2006. EXT.P.8: COPY OF THE CERTIFICATE OF THE SUPERINTENDENT, SPECIAL SUB JAIL, ALAPPUZHA DTD. 16/12/2001. EXT.P.9: COPY OF THE APPLICATION IN C.C. NO. 8/1124 AND THE ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.I, CHERTHALA DTD. 24/11/2005. EXT.P.10: COPY OF THE ORDER ISSUED BY THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, DTD. 18/08/2006. EXT.P.11: COPY OF THE JUDGEMENT OF THIS HONOURABLE COURT IN W.P.(C). NO.25817/2006 DTD. 23/07/2008. EXT.P.12: COPY OF THE ORDER OF THE UNDER SECRETARY TO THE GOVERNMENT OF INDIA DTD. 04/02/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.12538 of 2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of November, 2010. JUDGMENT The petitioner who is the widow of late Shri Velu Madhavan, is aggrieved by Ext.P12 order whereby the Central Government rejected the application for SSS pension. Mainly it was rejected for the reason that the jail certificate issued by the Superintendent, Central Prison, Thiruvananthapuram establishes jail suffering of only 4 months and 26 days. 2. The petitioner's late husband was actively involved in the Punnapra-Vayalar struggle and an arrest warrant was issued against him by the Court pursuant to which, he went underground for six months. Later he was arrested by the Police and the First Class Magistrate Court, Cherthala tried the case as C.C. No.8/124 M.E. and he was convicted and sentenced for six months imprisonment. It is also submitted that during the trial, her husband was in Sub Jail, Alappuzha for three months and after conviction he was imprisoned in the Central Jail, Thiruvananthapuram. 3. Ext.P1 is the true copy of the application dated 9.3.1998 and Ext.P2 is the true copy of the order of the District Collector sanctioning wpc 12538/20010 2 State pension. Ext.P3 is the copy of the report of the Tahsildar recommending sanction for State pension. It shows that the applicant is a participant of Punnapra-Vayalar struggle and had undergone imprisonment for a total period of eight months. Earlier, the application was not recommended and the late husband of the petitioner filed Ext.P5 review petition before the State Government. Ext.P6 certificate was also produced in support of the same, which shows the details of the case, conviction, etc. Exts.P8 and P9 are the true copies of the NARC issued from the Sub Jail, Alappuzha and the First Class Magistrate Court, Cherthala. By Ext.P10, the Central Government rejected the grant of pension which was under challenge in W.P.(C) NO.25817/2006. The said writ petition was disposed of by Ext.P11 judgment. He died during the pendency of the said writ petition. Thereafter, again the matter was considered and Ext.P12 order has been passed. 4. Heard learned counsel for the petitioner, learned Govt. Pleader and learned Central Govt. Standing Council. 5. Learned counsel for the petitioner submitted that the period of sentence was actually for six months which will be evident from the files maintained by the Collect orate, Alappuzha in connection with the sanction of State pension. The relevant files have been produced before this Court wpc 12538/20010 3 by the learned Govt. Pleader. 6. The file contains the true extract of the convict register of the Central Prison, Thiruvananthapuram in respect of the husband of the petitioner. The details of the same show that he was convicted in C.C. No.8/124 M.E. of the First Class Magistrate Court, Cherthala and the period of sentence as six months S.I. The date of sentence was 9th Dhanu, 1124 and expiry of sentence was 8th Midhunam, 1124. He was released on 8.11.1124 on expiry of the sentence. For easy reference, the contents of the convict register are extracted below: “TRUE EXTRACT OF THE CONVICT REGISTER OF CENTRAL PRISON, TRIVANDRUM. 1. Convict No. 6 2. Name with father's or Husband's name Velu Madhavan 3. Date of admission into the jail 12th Makaram 1124 4. Whether admitted by directed committal or by transfer 5. If by transfer from what jail and S.No. in that jail Register 6. Sex and whether married or single etc. Male - Single 7. Race, Religion and caste Hindu Ezhava 8. Previous occupation Cooly 9. Residence:Town or village Paracheril veedu, Charamangalam Taluk and District Thanneermukkam Thekkumbhagam, Cherthala. 10.State of education etc. Malayalam 11.Age on admission 32 5” - 5” 12.Description and marks 1) A mole 1 1/2” below the left wpc 12538/20010 4 of identification mandible 2) A mole 1” below the left nipple 13.Class whether habitual or casual 14.Offence for which S.9(5) r/w/ Sec.9(1)a of Act I of 22 imprisonment 15.Calander No. of case and C.C.No.8/124 Wrt No.21 dt.9.6.124 Ist Class Magistrate, Cherthala 16.Sentence 6 (Six) months S.I. 17.Date of of sentence 9th Dhanu 1124 18.Date of expiry of sentence 8th Midhunam 19.Result of appeal (if any) 20.Date of receipt of fine or intimation of payment of fine 21.Weight 22.Health 23.Disposal with date Released on 8.11.1124 on expiry of sentence 24.Date of return of warrant 8.11.1124 to Court /true extract/ sd/- Superintendent T/6/21-8-72 (100) Central Prison, Trivandrum.” The particulars of the above extract will show that he was sentenced for a period of six months and was released on 8.11.1124 on expiry of the sentence. 7. Learned counsel for the petitioner submitted that the respondents are treating the period of conviction and sentence as one below six months, for the reason that the date of admission into the jail as 12th Makaram, 1124. It is pointed out that column 23 which gives the date of release as wpc 12538/20010 5 8.11.1124 will show that such a release was not a premature one but was after the expiry of sentence. There was no remission for him also. Therefore, it is pointed out that even though the date of admission is 12th Makaram, 1124 (12.6.1124), since the release was after the expiry of sentence, it will be evident that he was in custody from the date of conviction at least, even though during trial also he as in custody. It is therefore submitted that the view taken by the respondents cannot be supported. 8. Plainly, in Ext.P12 the main reason shown is that the primary evidence, viz. the certificate issued by the Superintendent, Central Prison, Thiruvananthapuram establishes jail suffering of only 4 months and 26 days. Going by para 3 of the counter affidavit, the minimum imprisonment required is of six months. Ext.P6 certificate only gives the date of admission and the date of release. But if the details of the extract of convict register, as noticed above, are analysed, it can be seen that the learned counsel for the petitioner is right in submitting that the late husband of the petitioner had suffered sentence of six months. 9. Evidently, the date of sentence is 9th Dhanu, 1124 (corresponding to 9.5.1124) and the release was on 8.11.1124. Hence, the six months period is satisfied. The period cannot be calculated from 12.6.1124, viz. wpc 12538/20010 6 the date of admission since it can be evidently seen that the release was not a premature one. It is recorded in column 23 of the convict register that his release was on expiry of sentence. In that view of the matter, it can be safely concluded that the late freedom fighter was released only after the expiry of sentence of six months. The sentence was for a period of six months as evident from column 16. Hence, it is evident that he was in custody prior to the date of admission into jail. 10. That he is a participant in Punnapra-Vayalar struggle, is evident from Ext.P3 report of the Tahsildar also. In the judgment Ext.P11 also, these aspects have been mentioned by this Court. 11. Learned counsel for the respondents submitted that the rejection of the claim is proper in the light of the evidence produced along with the application and the recommendation of the State Government. It is pointed out that the recommendation of the State Government was not elaborate also. 12. In the light of the clinching evidence by way of true extract of the convict register of the Central Prison, Thiruvananthapuram, the matter need not be relegated back to the authorities concerned, especially since the original files leading to the order Ext.P2 have been produced before this Court by the learned Govt. Pleader. The true extract of the convict register wpc 12538/20010 7 is one signed by the Superintendent, Central Prison, Thiruvananthapuram on 21.8.1972. 13. Therefore, Ext.P12 is quashed. It is clear that in the light of the primary evidence, the applicant is eligible for grant of SSS pension. There will be a direction to the Central Government to sanction pension and grant the benefits within a period of two months from the date of receipt of a copy of this judgment. The entitlement of the petitioner for arrears from the date of receipt of the application, will also be considered. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/