IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 WP(C).No. 7397 of 2006(E) ------------------------- PETITIONER: --------------- SMT.PADMAVATHY AMMA, AGED 73, W/O.NARAYANAN NAIR, THIYYADI HOUSE, PULLAZHI, THRISSUR. BY ADV. SRI.J.OM PRAKASH RESPONDENTS: ------------------ 1. THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE UNDER SECRETARY TO GOVERNMENT OF INDIA, FREEDOM FIGHTER'S DIVISION, MINISTRY OF HOME AFFAIRS, NEW DELHI. 3. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.K.SANDESH RAJA, ADDL.CGSC GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.7397/2006 2 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 28.8.87 OF THE DISTRICT COLLECTOR, THRICHUR. EXT.P2: COPY OF THE LETTER OF THE DISTRICT COLLECTOR, THRISSUR DATED 7.3.2000. EXT.P3: COPY OF THE ORDER OF THE ADDITIONAL SECRETARY TO GOVERNMENT DATED 14.10.1999. EXT.P4: COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER DATED 2.6.2005. EXT.P5: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 20.1.2006. TRUE COPY P.A.TO JUDGE T.R.RAMACHANDRAN NAIR,J ==================== W.P.(C).No.7397 of 2006 ======================== Dated this the 3rd day of April, 2008 JUDGMENT Petitioner is the widow of late Sri.T.Narayanan Nair who was a freedom fighter. He was imprisoned in North India several times for his active participation in the freedom struggle. He went underground several times in order to evade arrest as there was warrant of arrest against him. Later he was declared as a proclaimed offender by the competent court. The State Government had granted pension to him as per order dated 7.7.1987. He died on 23.5.1987. The petitioner, his widow was granted pension under Kerala Freedom Fighter's Pension Scheme as per Ext.P1 by the District Collector. 2. She submitted an application for grant of Swatantrata Sainik Samman Pension along with relevant documents in the year 1990. By Ext.P2 she was informed by the District Collector that the application has not been recommended. Ext.P3 is a communication from the State Government to the District Collector informing the said fact. The petitioner filed a fresh representation by way of Ext.P4 before the State Government W.P.(C).No.7397/2006 2 seeking to review Ext.P3. Earlier, she approached this Court by filing W.P.(C).No.21459/2005, wherein a direction was issued to the first respondent to dispose of the matter. By Ext.P5 the first respondent rejected the application for grant of S.S.S pension. 3. A reading of Ext.P5 shows that the application was rejected for want of primary documentary evidence from official records, valid Non-availability of Records Certificate (NARC) from the concerned authorities and for want of positive recommendation by the State Government. 4. The learned counsel for the petitioner invited my attention to Ext.P3 wherein the State Government did not recommend the application for the reason that the claim is doubtful. A reading of Ext.P3 shows that the Government felt the claim doubtful for the reason that the period covered by abscondance certificate and certificate issued by the District Magistrate, Meerut varies. It is submitted that, it is evident from Ext.P3 itself that he was admitted in the Jail on 30.11.1940 and sentenced for 18 months rigorous imprisonment and thereafter transferred to Central Prison, Barelly on 16.4.1941. In fact, the said fact has been certified by the District Magistrate, Meerut. 5. It is therefore evident from Ext.P3 itself that there is W.P.(C).No.7397/2006 3 primary evidence in the form of a certificate by the District Magistrate, Meerut, stating that he was admitted in the jail on 30.11.1940 and sentenced for 18 months rigorous imprisonment and transferred to Central Prison Barelly on 16.4.1941. It is clear that the mistake if any occurred in the abscondance certificate and the certificate issued by Sri.Vishnu Saran Dubalish that persuaded the Government to hold that the claim is doubtful. I am afraid that the said reasoning cannot be accepted. Since the certificate issued by the District Magistrate, Meerut is a primary evidence showing the details of his prison sufferings, merely because in the other certificates, the dates vary that will not make the claim doubtful, as the competent authority namely, the District Magistrate, Meerut had certified his sufferings. In fact, the petitioner's late husband was a freedom fighter who had been active in the field from 1942 to 1947. Merely because the parties have not mentioned with exactness the periods of suffering that cannot be a ground to reject the claim as doubtful. The freedom fighters submit the details only from their memory and it is up to the authorities to verify the same with relevant records. But when the records itself speak the correct facts, merely because of the fact that in W.P.(C).No.7397/2006 4 the certificates issued by the freedom fighters there is a difference, even though minute, that cannot be a reason to reject the application. In fact this aspect was considered by the Apex Court in Gurdial Singh v. Union of India and Others (2001 (8) SCC 8) it was held therein that an application for grant of pension shall not be rejected for technical reasons. The relevant findings contained in Para 8 are extracted below: “We have noticed with disgust that the respondent authorities have adopted a hypertechnical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the Scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed herein above, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and closed mind, completely ignoring the verdict of this Court in Mukund Lal Bhandari case'. We further feel that after granting the pension to the appellant, the respondents were not justified in rejecting his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his.” 6. Therefore, when primary evidence as such is available here in the form of certificate issued by the District Magistrate, Meerut, I fail to see how the claim can be termed as doubtful. Further it is evident that the period of imprisonment was for 18 W.P.(C).No.7397/2006 5 months which is more than sufficient to allow the application. 7. The above aspects have not been considered by the State Government while refusing recommendation. Therefore Exts.P3 and P5 are quashed. 8. The third respondent will forward a detailed verification-cum-entitlement report showing the recommendation in the light of the certificate issued by the District Magistrate, Meerut which is mentioned in Ext.P3 within a period of six weeks from the date of production of a copy of this judgment. On receipt of the same the first respondent shall consider the application afresh in the light of the recommendation and pass appropriate orders within a period of two months from the date of receipt of records from the State Government. The entitlement of the applicant for arrears from the date of receipt of the application which is dated 29.3.1999, also will be considered by the first and second respondents. The writ petition is allowed as above. T.R.RAMACHANDRAN NAIR,JUDGE dvs