IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 WP(C).No. 26676 of 2005(A) ---------------------------------------- PETITIONER(S): ------------------------- 1. K.RAGHAVA KURUP ( D I E D) KOCHUPLAVULLATHIL VEEDU, PAVUMBA NORTH, KARUNAGAPPALLY, KOLLAM DISTRICT. 2. LEKSHMI AMMA, W/O.LATE RAGHAVA KURUP, NOW RESIDING AT 'SURABHI', MELOODE PO, ADOOR. BY SRI.N.DHARMADAN, SENIOR ADVOCATE, BY ADV.SRI.M.R.SABU, SMT.D.P.RENU. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KERALA, GENERAL ADMINISTRATION(FFP B) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, KOLLAM, CHAIRMAN OF THE ADVISORY COMMITTEE FOR FREEDOM FIGHTERS, OFFICE OF THE COLLECTORATE, KOLLAM. R1 & R2 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.26676/2005 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF JUDGMENT IN O.P.NO.10655/2003 DTD. 18/05/05 OF THIS HON'BLE COURT. P2: COPY OF ORDER DTD. 25/06/2002 ISSUED BY GOVERNMENT. P3: COPY OF ORDER DTD. 26/07/2005 ISSUED BY GOVERNMENT. P3(A): COPY OF ORDER DTD. 27/07/2005 ISSUED BY DIST.COLLECTOR. P4: COPY OF ORDER (NARC) DTD. 21/12/2002 OF THE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA. P5: COPY OF REPLY AFFIDAVIT FILED BY 1ST PETITIONER IN O.P.NO.10655/2003. P6: COPY OF ORDER DTD. 5/02/2008 ISSUED BY GOVERNMENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.26676 of 2005 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of August, 2011 J U D G M E N T The 1st petitioner was a freedom fighter. He applied for Kerala Freedom Fighters' Pension under the Kerala Freedom Fighters Pension Scheme of the Government of Kerala. That was rejected by Ext.P2 order of the 1st respondent which reads thus: “Õß×Ï¢:åçµø{ ØbÞÄÈídÄ ØÎø çØÈÞÈß æÉX×X Ø¢ÌÈíÇßºîí ØâºÈ:åÄÞC{áæ¿ 4.2.2002 æÜ ¥çÉf ØâºÈÏßæÜ ÄÞC{áæ¿ ¥çÉf ØVAÞV ÕßÖÆÎÞÏß ÉøßçÖÞÇßºîá.å¥çÉfçÏÞæ¿ÞM¢ ÄÞCZ ÙÞ¼øÞAßÏßGáU dÖà. Éß.æµ. ÍÞØíAøæa ØVGßËßAxí, ¿ßÏÞÈí øIáÕV×æJ ¼ÏßW ÕÞØÎßÜïÞJÄßÈÞÜá¢ ÄÞCZ ¯Äá ØbÞÄÈídÄØÎø dÉØíÅÞÈJßW ÉæC¿áJÞÃí ²{ßÕßW çÉÞÏæÄKí çø¶æM¿áJßÏßGßÜïÞJÄßÈÞÜá¢ ØbàµÞøcÎæÜïKí æµÞÜï¢ ¼ßÜïÞ µ{µí¿V ¥ùßÏßºîßGáIí. dÖà. Õß.æµ. µøáÃÞµøæa ØVGßËßAxí ÄÞæÝÉùÏáK µÞøÃB{ÞW ØbàµÞøcÎæÜïKá¢ ¼ßÜïÞ µ{µí¿V ¥ùßÏßºîßGáIí. 1. 4.2.94 æÜ ¼ßÜïÞ ©ÉçÆÖµ ØÎßÄßçÏÞ·¢, dÖà Õß.æµ µøáÃÞµøæa ÎøÃçÖ×¢ ÕcÞ¼ØVGßËßAxáµZ ÙÞ¼øÞAáKÄÞÏß dÖiÏßWæMGÄßÈÞW, ¿ßÏÞæa ØVGßËßAxí §Èß çÎÜßW ØbàµøßçAI ®Ká¢ ÄàøáÎÞÈßºîßGáIí.å 2. dÖà Õß.æµ µøáÃÞµøX ÎøßºîáçÉÞÏßGáUÄßÈÞW ¿ßÏÞX ÈWµßÏ ØVGßËßAxßæa ÕÞØñÕßµÄ ÎÈTßÜÞAÞX µÝßÏáKßÜï. µâ¿ÞæÄå dÖà Õß.æµ µøáÃÞµøX ÈWµßÏ ØVGßËßAxßW W.P.(C)No.26676 of 2005 -2- ÄÞCZæAÄßæø ¦ÜMáÝ ²KÞ¢ µïÞTí Î¼ßØíçd¿xí çµÞ¿ÄßÏßæÜ Øß.Øß.240/42 ÈOV çµTßW ¥ùØíxá ÕÞùIí ÉáùæM¿áÕßºîÄÞÏß çø¶æM¿áJßÏßGáæICßÜá¢ ÄÞCZ µøáÈÞ·MUß ²KÞ¢ µïÞTí Î¼ßØíçd¿xí çµÞ¿ÄßÏßW ÈßKáU ®X.®.¦V.Øß.ÏÞÃí ÙÞ¼øÞAßÏßGâUæÄKá µÞÃáKá.å ÄÞC{áæ¿ ¥çÉfÏßçzW ÄÙØßWÆÞV Îá¶ÞLßø¢ ¥çÈb×Ã¢ È¿JßÏÄßW ÄÞCZAí æÉX×Èí ¥VÙÄÏßæÜïKí ¥ùßÏßºîßGáUÄÞÏß ¼ßÜïÞ µ{µí¿V ùßçMÞVGí æºÏñßGáIí.å§AÞøÃB {ÞW ÄÞC{áæ¿ ¥çÉf ¼ßÜïÞ µ{µí¿ùá¢ ÖáÉÞVÖ æºÏñßGßÜï. ¨ ØÞÙºøcJßW çµø{ ØbÞÄÈídÄ ØÎø çØÈÞÈß æÉX×ÈáçÕIßÏáU ÄÞC{áæ¿ ¥çÉf ¥ÈáÕÆßAÞX ÈßÕcJßÏßæÜïKáU ÕßÕø¢ ç¶ÆÉâVÕî¢ ¥ùßÏßAáKá.” The petitioner challenged the same in O.P. No.10655/2003. In that writ petition, this Court passed Ext.P1 judgment which reads as follows: “The petitioner approaches this court aggrieved by Ext.P3 order of the 1st respondent rejecting his claim for freedom fighters' pension under the freedom fighters' pension scheme of the Government of Kerala. The reasons mentioned therein are, (1) the District Advisory Committee, in its meeting held on 4.2.1994, has decided not to accept the certificates of Sri. V.K. Karunakaran since it has come to their notice that false certificates are being produced by persons after the death of V.K. Karunakaran; (2) since Sri. V.K. Karunakaran is no more, the correctness of the certificate given by him cannot be verified; (3) although, in the certificate given by Sri. V.K. Karunakaran, the case against the petitioner was stated to be C.C.No.240/42 of the court of Alappuzha First Class Magistrate, what is produced is N.A.R.C. from the Court of Karunagappally First Class Magistrate. Lastly, the Tahsildar, on enquiry, found that the petitioner is not entitled for pension. The 1st respondent has filed a counter affidavit supporting the findings in Ext.P3. 2. Regarding the question of acceptability of the certificate of V.K. Karunakaran, this court has, in Ext.P8 judgment, held that the fact that in the name of W.P.(C)No.26676 of 2005 -3- Sri.V.K. Karunakaran, somebody produced a bogus certificate is not a ground for rejecting the certificate in favour of the petitioner in that case. Here also, there is no finding in Ext.P3 that the certificate produced by the petitioner as that of Sri. V.K. Karunakaran suffers from any infirmity or that there is any ground for suspecting its genuineness. That being so, the reason for not accepting the certificate of Sri. V.K. Karunakaran is totally unjustified. In this connection, it may also be noted that, by Ext.P9, the Government had earlier decided to accept the certificate issued by Sri. V.K. Karunakaran. Coming to the objection regarding the N.A.R.C. from Karunagappally Court, the petitioner had subsequently produced Ext.P5 N.A.R.C. from the Allappuzha Court. In view of Ext.P5, the third objection also is no more valid. Earlier, the petitioner obtained the certificate from the Karunagappaly court probably because the petitioner hails from Karunagappally Taluk and he applied for the NARC before the court near to his residence. The fact that the Tahsildar had reported that the petitioner is not entitled to pension cannot also be pressed into service for denying pension to the petitioner as the respondents have not cared to either furnish the petitioner with a copy of the Tahsildar's report nor have they produced the same before this court. The basis of the conclusion of the Tahsildar, is also not disclosed in the counter affidavit of the respondents. In the above circumstances the reasons mentioned in Ext.P3 for denial of freedom fighters' pension to the petitioner will not stand judicial scrutiny. Hence, Ext.P3 is set aside and the respondents are directed to process the application of the petitioner for freedom fighters' pension on the basis of the documents now available and produced and pass appropriate orders on the petition in accordance with the observations in this judgment. This shall be done within a period of one month from the date of receipt of a copy of this judgment. The original petition is disposed of as above.” (underlining supplied) Pursuant to Ext.P1 judgment, the 1st respondent again passed Ext.P3 order which reads as follows: As per the Judgment read as first paper above, the Hon'ble High Court has observed as follows:- W.P.(C)No.26676 of 2005 -4- The petitioner is aggrieved by Ext.P3 order of the 1st respondent (State Govt.) rejecting his claim for Kerala Freedom Fighters' Pension. The reasons stated therein are (1) the District Advisory Committee in its meeting held on 4.2.94 has decided not to accept the certificates of Sri. V.K. Karunakaran since it has come to their notice that false certificates are being produced by persons after the death of V.K. Karunakaran. (2) since Sri. V.K. Karunakaran is no more, the correctness of the certificate given by him cannot be verified. (3) Although, in the certificate given by Sri. V.K. Karunakaran, the case against the petitioner was stated to be CC No.240/42 of the court of Alappuzha First Class Magistrate, what is produced is Non-Availability of Record Certificate from the court of Karunagappally First Class Magistrate. Lastly, the Tahsildar, on enquiry, found that the petitioner is not entitled to pension. Hon'ble High Court has set aside Ext.P3 and directed the respondents to process the application of the petitioner for Kerala Freedom Fighters' Pension on the basis of the documents now available and produced and pass appropriate orders on the petition in accordance with the observations in the judgment. The Hon'ble High Court has further directed that appropriate orders shall be passed within one month from the date of receipt of a copy of this judgment. As such the time limit is 26.7.05. The application for Kerala Freedom Fighters' Pension of the petitioner has been processed on the basis of documents now available and produced so far. The District Collector, Kollam has reported that apart from the decision of the District Advisory Committee not to accept the certificates of Sri. V.K. Karunakaran in future due to heavy inflow of bogus certificates after the death of the certifier, another important point to be noted is that in the Kerala Freedom Fighter's Pension Scheme, it is reiterated that in order to prove the imprisonment/abscondence, co- prisoners'/abscondence certificates are to be produced. To substantiate or to verify the genuineness of the co-prisoners' certificates, jail records of the certifier must also be produced by the petitioner. In this case the petitioner has produced the jail records of Sri. P. K. Bhaskaran, which was not acceptable, as the certifier does not have the minimum imprisonment of two years. But at the same time, the jail records of the other certifier Sri. V.K. Karunakaran has not been produced by the W.P.(C)No.26676 of 2005 -5- petitioner. District Collector has reported that in the absence of jail records, the veracity of the abscondence certificate of Sri. V.K. Karunakaran is doubtful and hence the certificate is not acceptable. The entitlement of the pension to the petitioner was duly enquired through the Tahsildar, Karunagappally. Tahsildar has reported that the petitioner had not participated in any freedom movement and therefore not eligible for pension. The Tahsildar's report indicates unambiguously that the petitioner is not eligible for Kerala Freedom Fighters' Pension. In this case, the enquiry envisaged in the Kerala Freedom Fighters' Pension rules was conducted through the Tahsildar, Karunagappally. Therefore the report of the Tahsildar must be relied upon and accepted. In view of the above reasons and in the absence of acceptable official records and certificates to substantiate the claimed sufferings of the petitioner, the District Collector, Kollam has reported that the decision taken in Ext.P3 of having rejected the claim of the petitioner may not be revised. Govt. have considered relevant records available especially the report of District Collector, Kollam and Govt. also find no convincing reasons to differ with the views of the District Collector Kollam. The Kerala Freedom Fighters' Pension scheme came into effect from 1.4.1997. Even after the elapse of 20 years since the inception of the scheme, applications were being received, without having any documentary evidence from official records to substantiate the claimed sufferings. Hence as per circular No.57183/FFPBI/93/GAD dated 31.12.93 Government fixed a target date i.e. 31.3.94 for submitting applications and it was made clear in the circular that applications received after 31.3.94 will be considered only on production of documentary evidences from official records such as warrant of arrest, court record, jail records clearly showing the applicant's suffering in connection with freedom struggle as is being followed by Government of India in delayed cases. In this case the petitioner submitted application on 22.3.2001 without the above acceptable documents. The Kerala Freedom Fighter's Pension Scheme came into effect from 1.4.1971. the petitioner has applied for pension only on 22.3.2001. No convincing reasons are found to condone the delay in applying for Kerala Freedom Fighter's Pension. W.P.(C)No.26676 of 2005 -6- The observations of the High Court in the judgment read as first paper above were borne in mind while processing and scrutinizing the application. In view of the above facts his request for Kerala Freedom Fighter's Pension is liable to be declined. Therefore appropriate orders are hereby passed rejecting the request of the petitioner for KFFP. Te petitioner's representation read as second paper above is also thus disposed of. Thus the directions of the Hon'ble High Court in the judgment is hereby complied with within the time limit. The petitioner is challenging Ext.P3 order seeking the following reliefs: “(a) issue a writ of certiorari or other writ or order or direction calling for the papers leading upto Ext.P3 (a) and quash Ext.P3 and P3 (a) and the Circular No.57/83/FFP/93/GAD dated 31.12.1993 referred to in Ext.P3 and all further orders denying pension to him. (b) Declare that the petitioner is a genuine freedom fighter eligible for freedom fighters pension under the state scheme from the date of his application filed in 1997 with 18% interest. (c) Issue a writ of mandamus or other writ or order or direction directing the respondents to disburse the freedom fighters pension with all arrears with 18% interest from the date of his application (d) issue such other orders as this Hon'ble Court may deem fit and necessary in the facts and circumstances of the case. Addl. Prayer (e) issue a writ of certiorari or other writ or order or direction calling for the papers leading up to Ext.P6 and quash the same and declare that Ext.P6 is against the decision of the Hon'ble Supreme Court and this Hon'ble Court on the subject.” 2. As far as the challenge against Ext.P6 order is W.P.(C)No.26676 of 2005 -7- concerned, I do not think that it is necessary to go into the validity of Ext.P6 for considering the claim of the petitioner in this writ petition insofar as Ext.P6 order was passed on 05.02.2008, long after the application filed by the petitioner and therefore for deciding the claim of the petitioner Ext.P6 is irrelevant. 3. The 1st respondent has filed a counter affidavit wherein the stand taken is that after 31.03.1994 the claim for freedom fighters' pension can be proved only by production of documentary evidences from official records such as warrant of arrest, court records, jail records. etc showing the applicants' suffering in connection with the freedom struggle, as is being followed by the Government of India, in delayed cases. 4. After filing this writ petition the 1st petitioner died and his widow has come on record as the 2nd petitioner to prosecute the writ petition. 5. I have considered the rival contentions in detail. 6. In view of Ext.P1 judgment of this Court, which W.P.(C)No.26676 of 2005 -8- has become final, the sufficiency of the documents produced by the petitioner cannot now be disputed by the respondents any more. In respect of the other ground mentioned in Ext.P3, I am of opinion that, as in the case of any other litigant before this Court, the State Government is also bound by the rules of constructive res judicata. The ground that after 1994 the petitioner should produce primary evidence to prove eligibility, now raised in Ext.P3, to reject the claim of the petitioner was never raised before this Court while this Court considered O.P. No.10655/2003. Ext.P1 judgment has become final. In Ext.P1 judgment, this Court has categorically held that the documents produced by the petitioner are sufficient for proving the claim of the petitioner for freedom fighters' pension. This Court also held that, denial of freedom fighters' pension to the petitioner will not stand judicial scrutiny. Of course, after holding so, this court directed the 1st respondent to pass fresh orders, in accordance with the observations in Ext.P1 judgment. Instead of doing that, the 1st respondent W.P.(C)No.26676 of 2005 -9- has now passed Ext.P3 order by dishing out some other ground, which were never pressed into service earlier for denial the claim of the petitioner. Even otherwise until Ext.P6 order was passed amending the scheme, the petitioner is entitled to have her claim verified in accordance with the scheme applicable without reference to Ext.P6 amendment. In view of the various judgments of the Hon'ble Supreme Court and this Court, it was for the State to find out documents in support of the claim of the freedom fighters for granting them pension. Simply by passing a circular, the Government could not have amended the scheme, which was done only by Ext.P6 on 5.2.2008. Ext.P6 therefore cannot govern the consideration of the petitioner's claim. In fact that the Government found it necessary to amend the scheme itself would go to show that but for the amendment the applications received till then cannot be rejected on that ground. In any event after having suffered Ext.P1 judgment the 1st respondent could not have passed any order other than an order granting W.P.(C)No.26676 of 2005 -10- pension to the petitioner insofar as in Ext.P1 judgment the eligibility of the petitioner for freedom fighters' pension under the State Scheme has been categorically accepted. If the State wanted to deny the petitioner that benefit, the State should have sought review of Ext.P1 judgment which they have not done. That being so, Ext.P3 order passed in violation of the finding in Ext.P1 judgment is clearly unsustainable. Accordingly Ext.P3 order and Ext.P3 (a) passed by the District Collector in accordance with Ext.P3 are quashed. The 1st respondent is directed to sanction and pay pension to the 2nd petitioner with arrears from the date of application of the 1st petitioner for pension, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/