IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 7314 of 2004(U) ------------------------- PETITIONER(S): --------------- KAYI MADHAVI, W/O. LATE T.N.MADHAVAN THOTTATHAM VEETTIL CHIRAYIL, KANICHUKULANGARA P.O. CHERTHALA, ALAPPUZHA DISTRICT. 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 TO GOVERNMENT, GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, THIRUVANANTHAPURAM. ADV. SRI.B.N.SHIV SHANKAR, ADDL.CGSC FOR R1 GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009,ALONG WITH W.P.(C) NO. 7735 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.7314 of 2004 APPENDIX Ext.P1: true copy of the Order No.R.Dis.58204/81/(N4) dated 28.8.1981 of the District Collector , Alleppey. Ext.P2: true copy of the application submitted by the petitioner for SSS Pension dated 20.4.1998. Ext.P3: true copy of the PKC issued by the prominent freedom fighter Sri.Kunjan Sukumaran dated 20.4.1998. Ext.P4: true copy of the communication No.H3.887/98/S.R dated 20.1.2001 issued by the District Collector, Alappuzha. Ext.P5: true copy of the representation submitted by the petitioner to the District Collector, Alappuzha dated 23.3.2002. Ext.p6: true copy of the NARC issued by the Chief Judicial Magistrate Court, Alappuzha in case No.P.E.7/1122 ME. Ext.p7: true copy of the Affidavit submitted by the petitioner duly attested by the judicial 1st Class Magistrate-I Alappuzha. Ext.P8: True copy of the PKC issued by Sri.Narayanan Ramankutty dated 17.1.2002. Ext.p9: true copy of the extract of the Convict Register of Central Prison, Trivandrum issued by the Superintendent in respect of Sri.Narayanan Ramankutty. Ext.p10: true copy of the Judgment dated 21.10.2003 of the Hon'ble High Court in W.P.(C) No.32976/2003. Ext.P11: true copy of the Communication No. 95958/FFP.A2/2003/GAD dated 2.1.2004 issued by the 2nd respondent to the petitioner. Ext.P12:true copy of the representation dated 20.1.2004 submitted by the petitioner. Ext.P13: True copy of the PKC issued by Sri.H.K.Chakrapani dated 16.1.2004. Ext.P14: true copy of the order of sanction of SSS pension to Sri.H.K.Chakrapani dated 18.6.2003. Ext.P15: true copy of the true extract of the Convict Register of Central Prison, Trivandrum in respect of Sri.H.K.Chakrapani. //true copy// HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C).Nos. 7314 & 7735 of 2004 ---------------------------------------- Dated this the 17th day of February , 2009 JUDGMENT 1. W.P.(C) No. 7314 of 2004 The petitioner is the widow of the freedom fighter Sri.T.N.Madhavan who had actively participated in the Punnapra-Vayalar struggle during the freedom struggle. It is submitted that on account of his active participation in the said struggle, an arrest warrant issued against him by the Special Magistrate Court, Alleppey in case No.P.E.7/1122 ME. Since the police were hunting after him for the arrest, to evade the arrest he had gone underground for a period of more than 10 months from October 1946 to August 1947 and as such he was entitled to get the “Swathantrata Sainik Samman Pension” hereinafter referred to as the SSS Pension. 2. The petitioner's late husband was sanctioned the Kerala Freedom Fighter's Pension with effect from 13.9.1976 as per the proceedings of the District Collector, Alappuzha vide order No.R.Dis.87917/76/F6 dated 13.9.1976. Since the Punnapra-Vayalar struggle was recognised by the Government of India for the purpose of grant of SSS Pension with effect from 20.1.1998, the petitioner submitted Ext.P2 application for the same. 3. Thereafter the District Collector vide letter dated 20.1.2001 asked the petitioner to furnish the following documents in order to W.P.(C) Nos. 7314 & 7735 of 2004 -2- consider her application for the grant of SSS Pension:- i. Copy of the arrest warrant/FIR/judgment/ the Register containing the details of the absconders if any, on account of the participation of her late husband in the Punnpra-Vayalar struggle; ii. In the absence of the aforesaid records, the non- availability of records certificate (NARC) issued by the Sub- jail/Central jail, District Superintendent of Police, the Court connected with the case, State Intelligence Bureau, Village Crime Book; iii. An affidavit duly attested by the Judicial 1st Class Magistrate; iv. Copy of the State pension payment Order; v. The Co-prisoner/personal knowledge Certificate in the prescribed form issued by two freedom fighters who had undergone imprisonment for a period of more than two years and also the recipients of both the Central and State pension and the “Thamrapatra”; vi. The pension payment order and the jail records of the certifiers. 4. It is the case of the petitioner that even though the petitioner has submitted all the requisite records as directed by the District Collector vide Ext.P4, the 2nd respondent informed the petitioner that since neither documentary evidence nor acceptable secondary evidence is produced, therefore it is not recommendable to the Government of India for SSS W.P.(C) Nos. 7314 & 7735 of 2004 -3- pension. 5. In the counter-affidavit, it is stated by the 2nd respondent that the claim of underground suffering is considered subject to furnishing of the following evidence. (a) Documentary evidence by way of Court's/Government's order proclaiming the applicant as an absconder announcing an award on his head or for his arrest or ordering his detention or (b) Where records of the relevant period are not available, Non-availability of Records Certificates (NARC) from the concerned authorities along with a personal Knowledge Certificate (PKC) from a prominent freedom fighter who has proven jail suffering of a minimum two years. 6. In this case the petitioner produced (i) non-availability of records certificate (NARC) issued by the Chief Judicial Magistrate Court, Alappuzha in case No.P.E. 7/1122 ME along with an affidavit duly attested by the judicial 1st Class Magistrate -I,Alappuzha(ii) Personal Knowledge Certificates (PKCs) issued by the prominent freedom fighters Sri.H.K.Chakrapani, Sri.Kunjan Sukumaran and Sri.Narayanan Ramankutty who had undergone imprisonment for a period of more than five years in the Central Prison , Trivandrum, and who are also recipients of both the Central and State Pensions. Besides this Sri.Narayanan Namankutty and Sri.H.K.Chkrapani are Thamrapathra award holders. (iii) the extract of the Convict Registers issued by the Superintendent of Central Prison Trivandrum in respect of the certifiers Sri.Narayanan W.P.(C) Nos. 7314 & 7735 of 2004 -4- Ramankutty,and Sri.H.K.Chakrapani. 7. It is submitted by the counsel for the petitioner that the requirements under the SSS Pension scheme are satisfied. The Co- prisoner certificates issued by all the certifiers are the recipients of Central Pension. The said fact reveals that those certifiers have undergone imprisonment for more than two years each and hence no supporting documents in relation with the petitioner's detention in the jail is necessary. Therefore there is no justification in not considering the application by the State government and forwarding it to the Central government as enumerated in clause 10 of the SSS Pension Scheme. 8. So Ext.P11 order is 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 petitioner is entitled to the same from the date of receipt of Ext.P2 application dated 20.4.1998 9. W.P(C) No. 7735/2004 During the pendency of this writ petition the petitioner died. So Smt.Thankamma W/o K.K.Chelappan is impleaded as supplementary W.P.(C) Nos. 7314 & 7735 of 2004 -5- petitioner as per order in IA. 2496/2009 10. In this writ petition the facts are more or less same as in writ petition No.7314/2004.The petitioner was also granted State Pension. The counsel for the petitioner submitted that the Co-prisoner certificates issued by all the certifiers are recipients of Central Pension. Sri.H.K. Chakrapani who is one of the certifier is also a Thamrapatra award holder. The said fact reveals that the those certifiers might have undergone imprisonment for more that 2 years each and hence no supporting documents in relation with the petitioner's detention in the jail are necessary. Therefore there is no justification in not considering the application by the State government and forwarding it to the Central government as enumerated in clause 10 of the SSS Pension Scheme. 11. So Ext.P7 order is 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 petitioner is entitled to the same from the date of receipt of Ext.P2 application dated 20.4.1998 (HARUN-UL-RASHID, JUDGE) es. W.P.(C) Nos. 7314 & 7735 of 2004 -6- HARUN-UL-RASHID, J. --------------------------- W.P.(C).Nos. 7314 & 7735 of 2004 ---------------------------- JUDGMENT 17th February, 2009