IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WP(C).No. 34813 of 2005(T) -------------------------- PETITIONER: ------------------ K. SUBHADRA, W/O. LATE V.SUKUMARAN, EZHIKKAKATHU VEEDU, AANATHALAVATTOM, KADAKAVUR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.LIJU. M.P RESPONDENTS: ----------------------- 1. UNION OF INDIA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION (INA CELL), LOK NAYAK BHAVAN, NEW DELHI-3. 2. THE DEPUTY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION (INA CELL), LOK NAYAK BHAVAN, NEW DELHI-3. *3. THE ACCOUNTS OFFICER, OFFICE OF ACCOUNTANT GENERAL (A&E), (INDIAN AUDIT ACCOUNTS DEPARTMENT), KERALA, M.G. ROAD, THIRUVANANTHAPURAM. *(R3 IMPLEADED AS PER ORDER DATED 16-02-2010 IN IA NO.14286/2009) R1 & R2 BY ADVS. SRI.JOBY CYRIAC, CGC SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR SRI.T.P.M. IBRAHIM KHAN, ASST. SOLICITOR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34813 of 2005(T) -2- APPENDIX PETITIONER'S EXHIBITS EXT.P1 – TRUE COPY OF THE CERTIFICATE DATED 27-03-1981 ISSUED BY THE KERALA EX-INA ASSOCIATION EXT.P2 – TRUE COPY OF THE CERTIFICATE ISSUED BY THE CO-PRISONER MR.K.K. DAMODARAN EXT.P3 – TRUE COPY OF THE APPLICATION SUBMITTED BY LATE SRI. V. SUKUMARAN EXT.P4 – TRUE COPY OF THE ORDER DATED 31-07-1984. EXT.P5 – TRUE COPY OF THE APPLICATION DATED 03-01-1985 EXT.P6 – TRUE COPY OF THE APPLICATION DATED 23-05-1992. EXT.P7 – TRUE COPY OF THE ACKNOWLEDGMENT CARD. EXT.P8 – TRUE COPY OF THE ORDER IN OP No.21252/1999 DATED 18-08-1999. EXT.P9 – TRUE COPY OF THE NOTICE DATED 27-10-1999. EXT.P10 – TRUE COPY OF THE REMINDER DATED 28-06-2005. EXT.P11 – TRUE COPY OF THE ACKNOWLEDGEMENT CARD. EXT.P12 – TRUE COPY OF THE CERTIFICATE ISSUED BY THE ALL INDIA INA COMMITTEE DATED 03-05-2005 EXT.P13 – TRUE COPY OF THE APPLICATION DATED 18-04-2009. EXT.P14 – TRUE COPY OF THE REPLY DATED 05-06-2009. EXT.P15 – TRUE COPY OF THE RELEVANT PAGES OF OFFICE MEMORANDUM No.55/03/2005-FF(P) DATED 12-05-2008 (PAGE 1 TO 3 & 8 TO 11). EXT.P16 – TRUE COPY OF THE MEDICAL CERTIFICATE DATED 31-01-2011 ISSUED TO THE PETITIONER FROM SREE GOKULAM MEDICAL COLLEGE, VENJARAMOODU, THIRUVANANTHAPURAM. RESPONDENTS EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE AMG P.R.RAMACHANDRA MENON, J. ------------------------------------------------ W.P.(C)No. 34813 OF 2005 ------------------------------------------------ DATED THIS THE 1st DAY OF JUNE, 2011 J U D G M E N T Petitioner is the widow of a freedom fighter having served Indian National Army (INA) for nearly 7 months from 10-04- 1944. In the course of the service of the deceased as above, he suffered imprisonment for nearly 7 months from August 1945 to March 1946. The factual position in this regard is sought to be asserted by the petitioner with reference to Ext.P1 certificate issued by the Kerala Ex-I.N.A Association; Exhibit P2 certificate issued by a co-prisoner and also Ext.P12 certificate issued by All India I.N.A Committee with regard to the concerned aspects mentioned therein. The case of the petitioner is that the deceased husband of the petitioner had made an application (Ext.P3) as early as in 1974 for granting pension by the Central Government under the Freedom Fighters Scheme. Since the same was not considered for quite long, after the demise of the husband, the petitioner took up the matter by filing Ext.P5 application dated 03-01-1985 and produced certain documents. While so, when the petitioner was given pension payable in respect of Freedom Fighter by the State, as per Ext.P4 order dated 31-07-1984, the petitioner requested to transpose the W.P (C) No.34813/2005 -2- application already preferred by the late husband and to consider her eligibility for the benefit. 2. Since nothing was heard, the petitioner preferred Ext.P6 reminder dated 23-05-1992 which was sent by registered post and thereafter approached this Court by filing OP No.21252/1999 for appropriate reliefs, which culminated in Ext.P8 verdict dated 18-08-1999 directing the 2nd respondent to consider the application and pass appropriate orders. However, without honouring the verdict in right spirit and perspective, the 2nd respondent passed Ext.P9 dated 27-10-1999 rejecting the application, for the reason that the application was not accompanied by a proper Co-prisoner's Certificate (CPC). Met with the situation, the petitioner preferred Ext.P10 application on 28-06-2005 pointing out the actual facts and figures including as to forwarding of the relevant certificates. Since the same did not turn to be fruitful, the petitioner has approached this Court by filing the above writ petition. 3. A counter affidavit has been filed from the part of the respondents contending the salient features of the Scheme and as to non-compliance of the of the norms on the part of the petitioner. The learned standing counsel appearing for the W.P (C) No.34813/2005 -3- respondents submits that the Scheme is specific and so far as the terms of the Scheme are not under challenge, the contention of the petitioner that Ext.P2 certificate issued by a Co-prisoner who had undergone imprisonment for a lesser term than 'one year' is not liable to be accepted and no relief is liable to be extented to the petitioner. 4. Learned counsel for the petitioner submits that Ext.P2 certificate has been issued by a person who had undergone imprisonment for 7 months as in the case of the petitioner, as the co-prisoner, who infact was granted pension by the Respondents under the very same Scheme and was also awarded 'Thamrapathra'. This by itself shows the discriminatory attitude being followed by the respondents in the matter of granting benefits to the deserving persons which is sought to be intercepted, relying on the decision in Devaki K. V. Union of India and others reported in 2010 (3) KHC 823. This Court is aware that Freedom Fighter's Pension granted by the State is not a reason for granting pension under the Central Scheme automatically. On going through the contents of the Scheme extracted by the respondents in their counter affidavit, there is no dispute regarding the eligibility of the petitioner to get the W.P (C) No.34813/2005 -4- benefit under the Scheme (if the Freedom Fighter has undergone imprisonment for 6 months) subject to the satisfaction of the terms therein. It is to be ascertained whether the person concerned is a 'Freedom Fighter', on the basis of the evidence as stipulated; either by way of primary evidence or even by secondary evidence. 5. Exhibit P2 certificate has been issued by a co- prisoner, who is a person having undergone imprisonment for less than the term of one year. No explanation is there, as to how such a person himself was granted the pension under the Scheme, having suffered only 7 months imprisonment and was honoured by giving 'Thamrapathra'. That apart, similar issue had come up for consideration before this Court earlier and a positive declaration has been made as per the judgment cited supra. 6. Considering the facts and circumstances of the case, this Court finds that the issue is squarely covered in favour of the petitioner as per the verdict in 2010 (3) KHC 823 and that the petitioner is entitled to get pension by virtue of the sufferings of her husband who was a 'Freedom Fighter'. Accordingly, the respondents are directed to grant pension W.P (C) No.34813/2005 -5- under the Swatantrata Sainik Samman Pension Scheme to the petitioner, being the widow of the freedom fighter concerned. Appropriate orders shall be passed by the respondents, extending the benefit to the petitioner and shall the due amount be disbursed within '3 months' from the date of receipt of a copy of this judgment. Writ Petition is allowed to the said extent. No costs. Sd/- P.R.RAMACHANDRA MENON, JUDGE. AMG True copy P.A to Judge