IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).No. 877 of 2010(H) ------------------------ PETITIONER(S): --------------- N.SADANANDA SWAMY, MANGALATHU VEEDU, ADINDADU SOUTH, KATTILKADAVU P.O., KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.R.RANJINI RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, HOME AFFAIRS, GIRISH MANTRALAYA, NEW DELHI. ADDITIONAL RESPONDENT: 2. H.C.BHANOT, UNDER SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. (R2 IS IMPLEADED SUO MOTU IN HIS PERONAL CAPACITY AS PER ORDER DTD.18.5.2010) ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 877/2010 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE JUDGMENT IN W.P.(C).No. 19925/2003. P2. COPY OF THE JUDGMENT IN W.P.(C).No. 31117/2004 OF THIS COURT. P3. COPY OF THE JUDGMENT IN W.A.NO.1117/2009 OF THIS COURT. P4. COPY OF THE LETTER DTD.28.8.09. P5. COPY OF THE APPLICATION DTD.12.11.87. P6. COPY OF THE RELEVANT PORTION OF THE MINUTES DTD.28.3.2000 OF THE ADVISORY COMMITTEE. P7. COPY OF THE LETTER DTD.9.12.2000. P8. COPY OF THE LETTER DTD.16.9.2008. P9. COPY OF THE ORDER DTD.15.12.2009. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 877 of 2010 ================== Dated this the 30th day of June, 2010 J U D G M E N T A freedom fighter aged 85 years is being driven to this Court again and again and now for the fourth time, for getting what is legally due to him, by giving which, we would be honouring ourselves more than the petitioner himself. What is due to him is freedom fighter's pension. He has sacrificed the better part of his life by participating in the freedom struggle of this country. Persons who still had patriotism in their mind devised a scheme for honouring the nation by granting freedom fighters' pension who fought for the country. One such scheme is the Swatantrata Sainik Samman Pension Scheme framed by the Government of India. Another is Freedom Fighters' Pension Scheme framed by the Government of Kerala. The petitioner applied for both. Both were rejected. The petitioner approached this Court by filing W.P.(C).No.19925/2003, in which, both the State Government and the Union of India were parties. By Ext.P1 judgment, a learned Single Judge of this Court categorically found that the petitioner is entitled to both pensions and he is a confirmed that he is a freedom fighter. The authorities were directed to reconsider his claim. The powers-that-be were not satisfied. They again rejected the claim of the petitioner. The petitioner again filed W.P.(C).No.31117/2004. By w.p.c.877/10 2 Ext.P2 judgment, a learned Single Judge of this Court examined the case threadbare again and categorically found that the petitioner is entitled to pension under both schemes. But this Court showed magnanimity in letting the 1st respondent pass orders in the matter after considering the recommendation of the State Government on merits regarding the eligibility of the petitioner for the claim for pension under the SSS pension scheme, after finding the petitioner is entitled to such pension. The Union of India did not find it necessary to challenge the judgment in which the eligibility of the petitioner was categorically found, although they were party to the writ petition. They accepted that judgment. But the State Government challenged the same by filing W.A.No.1117/2009. In that, by Ext.P3 judgment, a Division Bench of this Court confirmed the judgment of the learned Single Judge, pursuant to which, the State Government was at least kind enough to issue Ext.P4 recommendation to the Government of India, recommending the case of the petitioner for the purpose of SSS pension. But alas! the Under Secretary to the Government of India, who passed Ext.P9 order, was not convinced, notwithstanding the specific findings of this Court regarding the eligibility of the petitioner for pension under both schemes in no unambiguous terms and entered a finding that the petitioner is not eligible for pension under the SSS pension scheme. The petitioner challenges Ext.P9 order passed by the w.p.c.877/10 3 Government of India rejecting the petitioner's claim for pension under the SSS Pension Scheme in this writ petition. 2. In view of the earlier judgments of this Court, which in no unmistakable terms found that the petitioner is entitled to pension under both schemes, I, by order dated 18.5.2010 suo motu impleaded Sri.H.C.Bhanot, the Under Secretary, who passed Ext.P9 order. I also gave him more than five opportunities to redeem himself on his own, by passing orders in conformity with the judgments of this Court. But he remained recalcitrant and insists that insofar as this Court has granted the Union Government permission to consider the matter independently, what he has done is the right thing. He insisted that this Court to consider the matter again on merits. Therefore, I have no other go but to consider the matter on merits again. 3. The reasons mentioned in Ext.P9 order for rejecting the application of the petitioner are as follows: “5. After examination of the claim, it is found that Shri.N.Sadananda Swamy is not eligible for grant of pension due to the following shortcomings/discrepancies: i. The petitioner has not furnished any primary evidence to substantiate the claimed suffering. No Primary evidence has been furnished to corroborate either the undertrail or the underground suffering. ii. The petitioner has claimed undertrail suffering due to his participation in the Quit India Movement. The period of suffering as given by the petitioner is 2.2.1942 to 10.8.1942; whereas the Quit India Movement started in August 1942. This creates sufficient doubts regarding the genuineness and bonafide of the claim. w.p.c.877/10 4 iii. In view of the above, the petitioner's claim cannot be held as Primary Evidence based since she has not furnished any Primary evidence duly verified by the State Government. In absence of primary evidence, he is required to furnish Secondary Evidence in the form of NARC from the State Government along with PKC/CPC as prescribed in the Scheme. However, he has not done so. The petitioner has not furnished NARC from the State Government. He has furnished a copy of letter dated 24.7.2000 of District Collector, Kollam wherein there is a mention of NARC by Judicial First Class Magistrate Court, Karunagappally. It is, however, submitted that under the Scheme the certificate by the Judicial Magistrate's Court cannot be treated as valid NARC. iv. In the absence of valid NARC, the PKCs submitted by the petitioner cannot be considered. The PKCs from Shri.V.K.Karunakaran and Shri.R.Karunakaran Pillai have, however, been scrutinized. The petitioner has not furnished the jail records to establish the jail suffering of the certifiers for a period of at least 2 years. Thus the PKCs are not acceptable as the certifiers have not furnished any record/evidence of their own jail suffering of minimum one year (ie., they have furnished no evidence to establish that they are eligible certifiers). Moreover, the certifiers have certified the underground suffering of the petitioner for a period during which they theirselves (sic) were in jail. As such the PKCs are not acceptable. v. The Government of Kerala has categorically rejected the claim of the petitioner vide letter No.52658/FFP A3/2004/GAD dated 17.9.2004. However, subsequently the State Government had recommended the claim vide letter No.103977/FFP A3/2004/GAD dated 28.8.2009 without giving any concrete reason thereof and merely citing the court order dated 8.8.2007. The recommendation is not based on any valid ground and, as such, the recommendation of the State Government cannot be acceded to. 6. In view of the above the claim of the petitioner does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. 7. It is, therefore, regretted that it is not possible to accept his claim for grant of Samman pension under the Swatantrata Sainik Samman Pension Scheme. Hence the same, is hereby rejected. The petitioner may be informed of the decision accordingly. 4. As far as the first objection is concerned, nobody can dispute that at this point of time it is impossible for anybody to prove the sufferings in the freedom movement with original records relating w.p.c.877/10 5 to the criminal case against the freedom fighters. It is exactly for that reason, in the scheme applicale, a provision is made permitting applicants for pension to prove the same with the help of personal knowledge certificates from persons who had undergone minimum jail sentence of two years in the freedom struggle, along with a Non Availability of Records Certificate (NARC). The petitioner has admittedly produced personal knowledge certificates along with NARC. All of them have been rejected by the 1st respondent by reason Nos.ii, iii and iv. These reasons had been time and again considered by this Court in Exts.P1, P2 and P3 judgments. In Ext.P1 judgment, a learned Single Judge of this Court held as follows: “7. .... It is very clear from the application that the petitioner's claim is that he is a freedom fighter and that he has undergone imprisonment in Karunagappally and Kollam sub jails in connection with the Quit India struggle. So also it is clear that the petitioner's claim is that C.C.No.61/1118 of the Judicial 1st Class Magistrate Court, Karunagappally is a case which was charge sheeted against him in connection with his participation in the Quit India Struggle and the freedom movement. The application is rejected due to the reason that the court is not preserving any record relating to the period 1118. In the case of Ext.P4 also it is clear that the application submitted by the petitioner to the District Police Superintendent was for records relating to his jail confinement in the year 1942 and the rejection is on the reason that absolutely no records relating to 1942 are presently available. Obviously the claim in the application submitted before the District Police Superintendent was that the petitioner is a freedom fighter who has suffered imprisonment in connection with the Quit India Struggle. The observation in Ext.P8 Government Order that the District Collector, Kollam has reported that the petitioner has not claimed imprisonment or abscondence suffering does not appear to be correct. In fact four specific reasons contained in the District Collector's report certainly indicate that the petitioner has claimed that he has suffered imprisonment or abscondence suffering so as to entitle him to grant of pension. The first reason mentioned in Ext.P8 is that the certifiers do not have minimum imprisonment period of one year. This reason cannot be correct in the w.p.c.877/10 6 case of Sri.V.K.Karunakaran or Sri.R.Karunakaran Pillai going by Ext.P5 issued by Sri.V.K.Karunakaran and Ext.P5(a) issued by Sri.R.Karunakaran Pillai and also going by Ext.P10 as well as Exts.P11 and P12 judgments of this court. Ext.P12 of course contains an indication that Sri.R.Karunakaran Pillai was an approved certifier. The specific reason mentioned for rejection of V.K.Karunakaran's certificate is that after his demise the District Advisory Committee resolved on 4.2.1994 not to accept his certificate. As this court has observed in Ext.P11 the above reasons cannot be good more so in this case where Sri.V.K.Karunakaran's certificate was produced during Sri.Karunakaran's life time itself and the so-called inflow of bogus certificates came only after the demise of Sri.V.K.Karunakaran. There is no finding at all in this case that Sri.V.K.Karunakaran's certificate produced by the petitioner is a bogus one though in the counter affidavit there is a statement that the genuineness could not be verified due to the demise of Sri.V.K.Karunakaran [I am dealing with this aspect of the matter elsewhere]. The third specific reason mentioned in Ext.P8 as pointed out by the District Collector is that the certifiers do not mention the name of the movement or the case number in which the petitioner had undergone imprisonment or abscondence suffering. What the relevant rule requires is that in the case of underground sufferings abscondence certificates from prominent veteran freedom fighters along with non-availability of records certificate from the concerned authorities ought to be produced. The insistence that the certifiers themselves should give meticulous details such as case number etc. is adopting too technical an attitude which is unwarranted in view of the decision of the Supreme Court in Gurdial Singh's case (supra). The fourth reason mentioned in Ext.P8 is that the NARC does not say that C.C.No.61/1118 mentioned by the petitioner is related to freedom movement. As already indicated NARC itself becomes necessary because of total absence of records. In such a situation taking a lenient view one can only go by the consistent pleading of the petitioner that the case relates to freedom movement -- a case which can as well be accepted in the light of the abscondene certificate issued by the admitted Thamrapathra holders and also of Ext.P6 certificate issued by the President of the Freedom Fighters' Association who seems to belong to the very same taluk as the petitioner himself. 8. The State Government's counter affidavit does not refer specifically to the abscondence certificate issued by Sri.R.Karunakaran Pillai. A specific reference is made only to such certificate issued by Sri.V.K.Karunakaran. The reason that there has been inflow of bogus certificates and the District Advisory Committee Resolution dated 4.2.1994 not to accept Sri.V.K.Karunakaran's certificate hereafter cannot be a good reason. Further reason that the genuineness of the certificate could not be verified due to the death of the certifier is also in my view is not a good reason since even now it is possible to have such a verification by referring the same to close legal heirs of Sri.V.K.Karunakaran. 9. Having regard to the rival submissions made at the bar and in view of the the observations made, I feel that the petitioner's case w.p.c.877/10 7 deserves a second look. Accordingly, there will be a direction to the second respondent to reconsider the matter after holding fresh enquiries in the contest of genuineness of Ext.P5 abscondence certificate issued by Sri.V.K.Karunakaran. The acceptability of Ext.P5(a) issued by Sri.R.Karunakaran Pillai also be reconsidered by the second respondent in the light of Sri.R.karunakaran Pillai's claim that he is an authorised certifier as contained in Ext.P5(a). The petitioner is permitted to produce fresh documents including certificates or declarations by family members of Sri.V.K.Karunakaran so as to affirm the genuineness of Ext.P5 certificate. The second respondent shall complete the enquiry and take a final decision within a maximum period of three months from the date of production of a copy of the judgment. If the enquiry reveals that Ext.P5 is a genuine certificate and Sri.R.Karunakaran Pillai, the author of Ext.P5(a) is an approved certifier, the second respondent shall forward the necessary recommendations for the petitioner's application for pension under the SSS Scheme so as to facilitate award of that pension to the petitioner at the earliest. The first respondent shall also favourably consider the petitioner's application for State pension in case the result of the fresh enquiry is in favour of the petitioner.” (emphasis supplied) It does not require racking of brains to see that, by Ext.P1 judgment, this Court had categorically found that the certificates produced by the petitioner to prove his claim could not have been validly rejected. In Ext.P2 judgment the entire issue was again examined threadbare, in which, the Union of India was also a party. This Court held thus in Ext.P2: '6. In Ext.P4, emphasis is made on the non-acceptability of certificates of Shri V.K. Karunakaran and Shri R. Karunakaran Pillai on the ground that their jail records have not been produced and hence they are not acceptable. Going by the certificates issued by Shri V.K. Karunakaran and Shri R. Karunakaran Pillai, it is evident that both of them are recipients of 'Thamrapathra' and Central Freedom Fighters' Pension which is evident from Exts.P7 and P8 certificates issued by them. The details of imprisonment as given in them shows that Shri V.K. Karunakaran had suffered jail imprisonment for more than five years during different periods and Shri R. Karunakaran Pillai had suffered imprisonment for more than two years for different periods. It is evident that on the basis of their sufferings that they have been awarded 'Thamrapathra' and have been granted Central Freedom Fighters' Pension. Therefore, as regards those certifiers, neither the State w.p.c.877/10 8 Government nor the Central Government was in doubt about the eligibility and about their period of imprisonment. When such competent persons have given certificates, it is not proper to saddle responsibility on the petitioner to produce their jail records as these are matters within the knowledge of the Government itself. The respondents have no case that they are not freedom fighters who have no qualification to issue such certificates. It is clear from Ext.P3(4) letter dated 30.3.1984 issued by the Commissioner and Secretary to Government, General Administration Department, Trivandrum, to the District Collector, Alappuzha that Shri V.K. Karunakaran has suffered imprisonment for more than five years. Hence, the certificate issued by him is acceptable. Therefore, his competency cannot be disputed at all. In Ext.P3(5) judgment of the Division Bench also, their Lordships rejected the contention therein that the certificate issued by Shri V.K. Karunakaran cannot be accepted. Reference is made regarding the acceptability of his certificates, in Ext.P3 (7) judgment in O.P.No.10501/1997 and in Ext.P3(8) judgment in O.P.No.9136/1999. In fact, in the above judgment, this court was pleased to direct the authority to grant pension to the petitioner therein as the certificate issued by Shri V.K. Karunakaran was found unobjectionable. In spite of these, the respondents have again reiterated their stand in the earlier order to reject the application of the petitioner. 7. No reasons have been stated as to why those binding precedents are not acceptable. Therefore, plainly the reason that the certificate issued by the certifier Shri V.K. Karunakaran is not acceptable for want of his jail records, is not correct. Apart from the same, the reason stated to reject the certificate of Shri V.K. Karunakaran is that the declaration of Smt. Kousalya, viz., Ext.P3(3) herein is a fabricated one and therefore it is not acceptable. Apart from merely stating that it is found to be fabricated, no other reliable material as to the grounds in support of their conclusion, have been stated in Ext.P4. What are the enquiries made by the District Collector, is not evident from the same. 8. In this connection, a reference to the stand taken in the counter affidavit is necessary. Along with the counter affidavit even though Ext.R2(a) report of the District Collector has been produced, therein also the only statement is that “the declaration of Smt. Kousalya regarding the genuinity of abscondence certificate of Shri V.K. Karunakaran is not issued by herself and reported to be fabricated one.” As to the source of the said information, nothing is mentioned therein also. It is for this reason alone, the certificate has been rejected. The petitioner has produced herein Ext.P11 affidavit of Smt. Kousalya, the widow of late V.K. Karunakaran, wherein she has clearly stated that she is aware of the details of the certificate issued by her late husband in favour of the petitioner to prove his eligibility for Freedom Fighters' Pension. She has also clearly stated that Ext.P3(3) dated 8.7.2004 has been duly signed by her and given to the petitioner and that it was written by her daughter in her presence. It is also stated that nobody from the Collectorate came to her to verify the genuineness of the above w.p.c.877/10 9 letter and that the said letter is not a fabricated false document and it discloses the true fact. The contents of the affidavit have not been disputed in the counter affidavit filed by the second respondent and the facts stated therein have not been controverted also. Therefore, plainly the finding that the certificate issued by Shri V.K. Karunakaran cannot be accepted as it is a fabricated one, is not correct. Hence, it is evident and clear that the certificate issued by Shri V.K. Karunakaran is a genuine one and the same can be accepted as proof of the sufferings of the petitioner. Shri V.K. Karunakaran, in Ext.P7 certificate, has given the details of his jail term and stated that he was granted Central Freedom Fighters' Pension and is also a recipient of 'Thamrapathra'. That will evidently establish his credentials as only because of his jail terms, he was granted Central pension. This is so in the case of Shri R. Karunakaran Pillai also. He was also a recipient of 'Thamrapathra' and Central Freedom Fighters' Pension as evident from Ext.P8. When the certifiers have thus been granted Central pension as well as 'Thamrapathra' because of their sufferings, merely because the petitioner has not produced their jail records, the application cannot be rejected. All the details regarding the certifiers have been clearly stated in the certificate and if the authorities had any doubt in those matters, that too could have been checked up with relevant records. 9. As regards the grant of Central Freedom Fighters' Pension is concerned, the same has been granted to them based on the recommendation of the State Government and when that was recommended, these details were clearly available with the Government. Hence, the said reason stated in Ext.P4 also falls to ground. The finding therefore that Shri R. Karunakaran Pillai, the author of Ext.P5(a) is an ineligible certifier as he has not suffered minimum imprisonment for two years, is also not correct. . But in this case, going by the details of Shri V.K. Karunakaran itself, it is clear that he is a person who has been in jail for more than five years which is certified by the Government itself in Ext.P3(4). Therefore, the said circumstance is also in favour of the petitioner. 10. I am fortified on this, by Ext.P1 judgment itself. Further, the issue regarding the acceptability of certificates issued by Shri V.K. Karunakaran and Shri R. Karunakaran Pillai, to prove the jail term of the petitioner, is concluded by Ext.P1 judgment. In paragraph 7 it has been clearly found that “the first reason mentioned in Ext.P8 is that the certifiers do not have minimum imprisonment period of one year. This reason cannot be correct in the case of Shri V.K. Karunakaran or Shri R. Karunakaran Pillai going by Ext.P5 issued by Shri V.K. Karunakaran and Ext.P5(a) issued by Shri R. Karunakaran Pillai and going by Ext.P10 as well as Exts.P11 and P12 judgments of this court.” In the light of the above finding, the said issue could not have been reconsidered at all and what was directed was only to find out the genuineness of the certificate issued by Shri V.K. Karunakaran and not about the qualification of the certifiers. The findings which have become final in Ext.P1, cannot be reiterated to reject the application of the petitioner. w.p.c.877/10 10 11. Now one more aspect is also noticed, i.e., the certifier has not given the case number in the application. Actually, the said aspect is covered by Ext.P1 judgment in favour of the petitioner. In paragraph 7 of Ext.P1, a clear finding has been entered into on this aspect. His Lordship had entered a specific finding on the said aspect in the following terms: “The third specific reason mentioned in Ext.P8 as pointed out by the District Collector is that the certifiers do not mention the name of the movement or the case number in which the petitioner had undergone imprisonment or abscondence suffering. What the relevant rule requires is that in the case of underground sufferings abscondence certificates from prominent veteran freedom fighters along with non-availability of record certificate from the concerned authorities ought to be produced. The insistence that the certifiers themselves should give meticulous details such as case number etc. is adopting too technical an attitude which is unwarranted in view of the decision of the Supreme Court in Gurdial Singh's case (supra). The fourth reason mentioned in Ext.P8 is that the NARC does not say that C.C. No.61/1118 mentioned by the petitioner is related to freedom movement. As already indicated, NARC itself becomes necessary because of total