IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 21759 of 2005(M) -------------------------- PETITIONER: --------------- M.S.FRANCIS, MANAKAYIL VEEDU, ARATTUVAZHI WARD, ALAPPUZHA. BY ADV. SRI.K.K.SATHEESH RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003. 2. STATE OF KERALA REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.SUBAL J.PAUL, ADDL.CGSC FOR R1 GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHAFOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1: True copy of the order NoR.Dis. 31465/75 dated 10.9.1975 issued by the District Collector, Alappuzha. Ext.P2: True copy of the application submitted by the petitioner for the grant of SSS Pension to the respondents dated 8.6.1998. Ext.P3: True copy of the Co-prisoner certificate issued by Sri.P.A. Solomon Ex-M.P dated 30.5.1998. Ext.P4: True copy of the NARC issued by the Superintendent of Sub-jail Alleppey Ext.P5: true copy of the certificate issued in the prescribed form by P.A.Solomon Ex.M.P dated July 2001. Ext.P6: True copy of the Judgment dated 22.11.2002 passed by this Hon'ble Court in O.P No. 36669/2001 Ext.P7: True copy of the Communication No. 2818/FFP.A2/2003/GAD dated 31.3.2003 issued by the 2nd respondent to the petitioner. Ext.P8: True copy of the communication No.52/CC/Ker/28/2001-FF(SZ) dated 31.7.2003 issued by the 1st respondent to the petitioner. Ext.P9: True copy of the representation submitted by the petitioner dated 14.6.2005. Ext.P10: True copy of the letter dated 28.1.2004 issued by the 1st respondeont. Ext.P11: True copy of the letter No.52/CC/K/69/2004-FF(SZ) dated 3.2.2005 issued by the 1st respondent. // True copy// 30.1.1999 es HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C).No.21759 of 2005 ---------------------------------------- Dated this the 29th day of January , 2009 JUDGMENT Petitioner was a freedom fighter who had actively participated in the Punnapra-Vayalar Movement during the freedom struggle. It is not disputed that the petitioner is a recipient of the Kerala State Freedom Fighter's Pension It is his further case that on account of his active participation in the said struggle, he has undergone imprisonment in the Sub jail Alleppey in connection with case No.P.E. 7/1122 ME on the file of the Special Magistrate Court Alleppey for the period from November 1946 to August 1947 and as such he is entitled to get the benefit of “Swtantrata Sainik Samman Pension” hereinafter referred to as the SSS Pension. 2. The petitioner is a recipient of State Pension. Ext.P1 is the order sanctioning State pension. Ext.P2 is the application submitted by the petitioner for the grant of SSS Pension. Since Ext.P3 co-prisoner's Certificate was not in the prescribed form the petitioner submitted Ext.P5 co-prisoner certificate issued by Sri.P.A. Solomon Ex-M.P in the prescribed form . Ext.P4 is the non availability records certificate issued by the superintendent of Sub jail Alleppey . 3. The petitioner had occasion to approach this court by filing O.P 36669/2001. Vide judgment dated 22.11.2002 this Court directed the State Government to look into the matter and to take appropriate action if W.P.(C) 21759 of 2005 -2- the petitioner is found eligible for SSS pension. 4. Clause 9(a) of the SSS Pension Scheme reads as follows: “Imprisonment/Detention etc:- Certificate from the concerned jail authorities, District Magistrates or the State Government. In case of non- availability of such certificates co-prisoner certificates from a sitting M.P or M.L.A or from an ex-M.P or an ex-M.L.A specifying the jail period.” 5. Pursuant to Ext.P6 Judgment, by Ext.P7 Order the State Government declined to recommend the application to the Government of India for the reason that the undertrial period ending in conviction alone, will count as actual suffering for granting SSS Pension. This Court in the decision reported in Union of India Vs. PeterDevassia 2003 (1) KLT 467 held that imprisonment in Jail as undertrial prisoner could be counted for computing the six months period of imprisonment for getting freedom fighters pension and the trial need not end in conviction. So the period of undertail can be reckoned for the purpose of deciding whether the applicant is entitled to SSS Pension or not 6. The second reason stated is that the Co-prisoner certificate issued by Sri.P.A. Solomon Ex.M.P cannot be acceptable because it is not supported by the jail records regarding the details of the imprisonment of the certifier. This question is considered by this Court in similar cases. This court found that Sri.P.A. Solomon Ex-M.P is a recipient of Central pension under the very same scheme. The prerequisite for grant of SSS pension under the very same scheme is that the applicant must undergone imprisonment in a jail for a period not less than 6 months . The very fact that the said Solomon is a recipient of Central pension reveals that he has undergone imprisonment for not less than 6 months. In such W.P.(C) 21759 of 2005 -3- circumstances the non availability of records certificate issued by the Jail authority and the Co-prisoner certificate issued by the Ex-M.P Sri.P.A Solomon are sufficient to meet the requirements under Clause 9(a) of the scheme The other requirement i.e co-prisoner certificates from two prominent freedom fighters who have suffered imprisonment for a period of not less than one year is not the requirement under the scheme, in this case and therefore cannot stand. Hence Ext.P7 order passed by the State Government declining to recommend the application of the petitioner is illegal. Since Ext.P7 is illegal Ext.P8 order passed by the Central Government is not sustainable in law. 7. In the result, Ext P7 and P8 orders are quashed. There will be direction to the State Government to send the verification cum entitlement to pension report along with their recommendation as enjoined under clause 10 within one month from the date of receipt of a copy of this judgment. On receipt of those documents the 1st respondent shall consider and pass appropriate orders on Ext.P2 within 2 months thereafter . In the event of granting pension by the Central Government it is needless to say that the petitioners are entitled to the same from the date of receipt of Ext.P2 application dated 8.6.1998. This writ petition is disposed of. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- W.P.(C) No. 21759 of 2005 ---------------------------- JUDGMENT 29th January, 2009