IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 WP(C).No. 13325 of 2006(J) ------------------------------------- PETITIONERS: --------------------- K.G.ANNIE, AGED 58 YRS, W/O. IGNETIOUS LUKOSE, C.C.35/2076, ANNIETHOTTAM, SOUTH PIPE LINE ROAD, PALARIVATTOM P.O., KOCHI-682 025. BY ADV. SRI.SHAJI P.CHALY RESPONDENTS: -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA WATER AUTHORITY, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN. 3. THE EXECUTIVE ENGINEER, PROJECTS DIVISION, KERALA WATER AUTHORITY CENTRAL OFFICE, NEAR GENERAL HOSPITAL, ERNAKULAM, KOCHI-682 011. 4. THE ASSISTANT EXECUTIVE ENGINEER, PROJECTS DIVISION, KERALA WATER AUTHORITY CENTRAL OFFICE, NEAR GENERAL HOSPITAL, ERNAKULAM, KOCHI-682 011. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW SMT.AMBIKA DEVI, SC , KWA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13325/2006 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PATTAYAM DT. 5.10.1977 BEARING NO.7100/77. EXT.P2:- COPY OF THE DOCUMENT BEARING NO. 1304/76. EXT.P3:- COPY OF THE CORRECTION DEED DT. 28.5.93 BEARING NO.2385/93. EXT.P4:- COPY OF THE JUDGMENT IN OS. 845/93. EXT.P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P6:- COPY OF THE SKETCH SHOWING THE ALTERNATIVE ROUTE FOR LAYING THE PIPE LINE. /TRUE COPY/ P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).NO.13325/2006-Y - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of August, 2007 JUDGMENT The petitioner herein is the widow of late Souriar Devassia who was a freedom fighter and who had actively participated in the Punnapra – Vayalar Movement during the freedom struggle. The dispute herein is one relating to the claim for pension under the Swatantrata Sainik Samman Pension Scheme framed by the Union of India. The petitioner challenges Ext.P11 wherein the claim was rejected, even though the State Government had recommended for granting the pension as per Ext.P6. 2. Pursuant to his participation in the Punnapra – Vayalar Struggle, he was arrayed as accused No.27 in S.C. No.11/1124 M.E., before the Sessions Court, Alappuzha. As per judgment dated 9.12.1949 (24th Vrischigom 1125), the Sessions Court found him guilty and he was sentenced to undergo rigorous imprisonment for a period of 3 ¼ years. Ext.P1 is the judgment of the Sessions Court. Thereafter, he was imprisoned in the Central Prison, Trivandrum as convict NO.1153 for the period from 27.4.1123 M.E., till he was released on 28.2.1951. Ext.P2 is the true extract of the Convict Register of Central Prison, Trivandrum, WPC 13225/2006 -2- along with the covering letter issued by the Superintendent of Central Prison, Trivandrum. Even though the late husband of the petitioner had submitted an application as early as on 12.7.1972, that was rejected by Ext.P3 only on the reason that Punnapra – Vayalar struggle had not been recognidsed as part of freedom movement by the Government of India. Later, as per order dated 20.1.1998 the said struggle was recognised as part of freedom movement. There are two more aspects worthy to be mentioned here. The petitioner's late husband was granted the benefit of Kerala Freedom Fighters' Pension as early as on 1.4.1971 as per the proceedings of the District Collector, Alappuzha. He was also honoured by way of conferring “Thamrapathra”. These facts are not disputed. 3. The petitioner, by an application dated 16.4.1998 (Ext.P4), applied for grant of pension under the S.S.S. Pension Scheme. The application was recommended by the State Government as per Ext.P6. Thereafter, since there was delay in the matter, she approached this court along with two others by filing O.P. No.8706/2001 wherein she was the third petitioner. As per Ext.P7 interim order, this court directed the first respondent to take a decision on the claim of the petitioner herein in accordance with law, on the basis of the recommendation of the second respondent. It is submitted by the leaned counsel that pending the said writ petition, petitioners 1 and 2 WPC 13225/2006 -3- therein were granted the pension by the Central Government. Ext.P8 was the communication received by the petitioner by which her application was rejected by the Government of India. This was mainly for the reason that the extract of the convict register produced is an unattested photo copy and no secondary evidence has been produced by the petitioner. Again, the petitioner submitted Ext.P9, wherein she had given all the details about the conviction in the Sessions Case No.11/1123 M.E., with particular reference to the judgment in the above case. Along with the said representation, she had produced the true extract of the Convict Register of Central Prison, Trivandrum along with the covering letter issued by the Superintendent of Central Prison duly attested by the Special Tahsildar, Land Acquisition (General), Alappuzha and also copy of the judgment in S.C. No.11/1124 M.E. (Ext.P1 produced herein). O.P. No.8706.2001 filed by the petitioner was disposed of by Ext.P10 judgment. In paragraph 2 of the judgment, this court was pleased to hold that “as far as the third petitioner is concerned, it is submitted that the State Government has recommended the same as can be seen from Ext.P9. In view of Ext.P1 judgment it is submitted that the recommendation of the State Government has to be taken note of while taking the decision. It is seen that Ext.P13 representation of the third petitioner is pending before the first respondent. There will be a direction to WPC 13225/2006 -4- the first respondent to consider Ext.P13 and pass orders in the light of Ext.P1 judgment and recommendation of the State Government and that of the District Collector.” It is thereafter that Ext.P11 has again been issued rejecting the claim of the petitioner for pension. 4. A reading of Ext.P11 will show that the very same reasons which were recorded in Ext.P8 are produced verbatim in paragraph 6 of Ext.P11. Plainly, this is not in tune with the directions of this court in Ext.P10 judgment. This court had directed the authority to consider the representation in the light of the recommendation of the State Government and in the light of Ext.P1 judgment. Paragraph 6 of the order shows that the authority has not considered the directions in the judgment at all and has went on a tangent to reject the Convict Register on flimsy reasons. The reason stated for rejecting the extract of the Convict Register is that it is an unattested photo copy which is not correct at all. The same had been attested by the Tahsildar, Land Acquisition, Alappuzha and the covering letter of the Superintendent of Central Prison, Trivandrum was also there along with the Convict Register. Therefore, nothing worthwhile is discernible from the finding that the extract of the Convict Register does not bear the full name of the issuing authority. The petitioner has clearly averred in paragraph 9 of this writ petition about these aspects which are not WPC 13225/2006 -5- disputed in the counter affidavit filed by first respondent. Hence, the fact that there was due attestation is deemed to have been admitted. In Ext.P9 also this fact is reiterated. The petitioner has produced a copy of the Convict Register as Ext.P2. The covering letter of the Superintendent, Central Prison shows that it was issued based on the application dated 11.11.1972 submitted by the petitioner. He has stated that the true extract of the Convict Register shows the details of conviction as forwarded herein. Therefore, there are no circumstances existing to suspect the genuineness of Ext.P2. The extract shows in column NO.3, the date of admission into jail. He was admitted as under trial prisoner on 27 Vrischigam 1123 and as convict on 25 Vrischigam 1125. Column No.14 contains the offence for which he was imprisoned, column No.15 gives the details regarding the case, name of court, etc., column no.17 gives the date of sentence, column no.18 shows the date of expiry of sentence and column No.23 gives the date of release on 28.2.1951 and acquitted vide order dated 26.2.1951 of the High Court. The details above furnished by the petitioner in the Convict Register, going by Ext.P1 judgment tallies with all particulars. This court in Ext.P10 judgment had directed the first respondent to consider her application based on the recommendation by the State Government and based on Ext.P1 judgment. There is no reference to WPC 13225/2006 -6- the consideration of Ext.P1 judgment in Ext.P11. Ext.P1 judgment shows that accused No.27 is Souriar Devassia. All the details regarding the offences for which he was punished and the term of imprisonment have been stated in the face page of the judgment itself (internal page 6). The operative portion of the judgment is is available as far as the said details are concerned. Therefore, when the petitioner had produced the copy of the judgment itself, the authority was acting improperly in acting on the alleged defects of the Convict Register. In Ext.P6 it is relevant to notice that the recommendation made after stating the details of the conviction and based on the judgment in S.C. No.11/1124 in the following items: “On the strength of the above judgment and the recommendation of District Collector, Alappuzha, the application is recommended for SSS Pension.” The authority has totally misapplied its mind to the importance of Ext.P1 judgment which itself is a primary evidence, proving his conviction. 5. Then, the other reason stated in Ext.P11 is that even though the State Government was requested to consider the genuineness of the said extract, the Government has forwarded the same with remark that no grounds or evidence are seen to differ with the Superintendent's report. It is also stated in paragraph 6(i) of Ext.P11 that the State Government vide its WPC 13225/2006 -7- letter dated 5.4.2005 has forwarded a copy of the Superintendent's letter dated 4.4.2005 mentioning that the records/register relating to the imprisonment of Souriar Njondi Devassia is not available in his office and hence the genuineness of the certificate issued earlier, cannot be ascertained. This particular aspect is relied upon by the first respondent to hold that the extract of the Convict Register cannot be accepted as valid primary evidence. The approach, according to me, is highly technical, as I have pointed out above that the judgment Ext.P1 itself proves the conviction of the freedom fighter. The report of the State Government about absence of his jail records has no significance at all on the merits of the claim as the State itself had recommended his case based on Ext.P1 judgment herein. 6. Ext.P6 recommendation was not at all considered by the first respondent, evidently. There was a binding direction in Ext.P10 judgment also to pass orders in the light of the recommendation of the State Government and that of the District Collector. Ext.P6 shows that there is a recommendation by the District Collector, Alappuzha as regards the claim of the petitioner. Therefore, unless there are cogent circumstances to differ from the same, the recommendation ought to have been accepted by the first respondent. As far as the rule of evidence required in such cases, the Supreme Court in Gurdial Singh v. Union of India and others (2001) 8 WPC 13225/2006 -8- SCC 8 held as follows: “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, reasonable and reliable evidence.” Judged in the light of the above dictum, the petitioner has succeeded in establishing her claim in view of the fact that her late husband was found guilty by the Sessions Court, which is evidenced by Ext.P1 judgment. When the judgment itself was before the first respondent along with Ext.P6 recommendation by the State Government, they have failed in their duty by harping on the alleged non-availability of the Convict Register. According to me, there are no circumstances to doubt the veracity of the Convict Register. As found already, there is total failure to comply with the directions in the judgment Ext.P10, by the first respondent. 7. When a decision of an authority is based on total non-application of mind and the decision is tainted by an error of fact also, this court will be justified in interfering with the same in proceedings under Article 226 of the WPC 13225/2006 -9- Constitution of India. Reference may be made in this respect to the decision of the Supreme Court in S.N. Chandrashekar and another v. State of Karnataka and others ((2006) 3 SCC 208 para 33). Their Lordships were pleased to hold that “the concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reason) inconsistent, unintelligible or substantially inadequate. (See de Smith's Judicial Review of Administrative Action, 5th Edn. p. 286)”. In the earlier decision of the Supreme Court in Cholan Roadways Ltd. v. G. Thirugnanasambandam ((2005) 3 SCC 241) their Lordships held that “the errors of fact can also be subject matter of judicial review.” 8. Therefore, I am convinced that the approach made by the first respondent is totally without any application of mind and Ext.P11 is therefore quashed. It is declared that the petitioner is entitled for the grant of pension under the Swathantrata Sainik Samman Pension Scheme. The first respondent is directed to pass consequential orders regarding sanction of the pension within a period of two months from the date of receipt of a copy of this judgment. In Ext.P10 judgment wherein the petitioner was also a party, this court had directed the first respondent to consider the grant of arrears also in accordance with law. While granting sanction for the pension, WPC 13225/2006 -10- the first respondent will consider the grant of arrears also to the petitioner, at any rate, from the date of receipt of the application, viz., 21.4.1998 which is evidenced by Ext.P5 acknowledgment card. The Original Petition is allowed as above. N costs. (T.R. Ramachandran Nair, Judge.) kav/