IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 W A.No. 1555 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.877/2010 Dated 30/06/2010 .................... APPELLANTS: RESPONDENTS 1 & 2 IN W.P.(C)877/2010 --------------------------------------------------- 1. UNION OF INDIA,REPRESENTED BY SECRETARY TO GOVERNMENT,MINISTRY OF HOME AFFAIRS, NEW DELHI. * 2. THE UNDER SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS,NEW DELHI (IMPLEADED AS ADDITIONAL REPSONDENT IN HIS PERSONAL CAPACITY). (*second appellant is transposed as second respondent, as per order dated 15.11.2010 in I. A No. 802 of 2010) BY ADV. MR. S.KRISHNAMOORTHY, CGC RESPONDENT : PETITIONER ----------------------------------------- 1. N.SADANANDA SWAMY,MANGALATHU VEEDU, ADINADU SOUTH,KATTIKAADAVU.P.O,KARUNAGAPALLY, KOLLAM,KERALA. * 2. THE UNDER SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS,NEW DELHI (IMPLEADED AS ADDITIONAL REPSONDENT IN HIS PERSONAL CAPACITY). ( transposed as second respondent, as per order dated 15.11.2010 in I. A No. 802 of 2010) R1 BY ADV. MR. N.DHARMADAN, SENIOR ADVOCATE MS. R.RANJINI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/07/2011, ALONG WITH COC NO. 1340 OF 2010 THE COURT ON 10/08/2011 DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 1555 Of 2010 and Cont. Case (C) No. 1340 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 10th day of August, 2011 JUDGMENT Ramachandra Menon J. The verdict passed by the learned Single Judge in W.P(C) No. 877 of 2010, directing to sanction and disburse Freedom Fighters' Pension under the Swatantrata Sainik Samman Pension (SSSP) Scheme to the writ petitioner, with interest from the date of application, also awarding cost of Rupees Twenty five thousand is the subject matter of challenge in the Appeal filed at the instance of the Central Government. Alleging wilful disobedience in complying with the directions contained in the judgment, the writ petitioner has filed the other case, for proceeding against the respondent / contemnor in respect of the offence under the Contempt of Courts Act. W.A No. 1555 of 2010 and COC No. 1340 of 2010 :2: 2. Mr. N. Dharmadan, the learned senior counsel appearing for the respondent in the Writ Appeal (writ petitioner) presented the matter referring to the sequence of events and the offence stated as committed by the respondent in the contempt petition. Mr. S. Krishnamoorthy, the learned Central Government Counsel appearing for the appellant in the Writ Appeal (respondent / Contemnor in the contempt petition) asserted that, there is absolutely no contumacious act on the part of the concerned respondent; that the pension has already been sanctioned and disbursed to the writ petitioner, in compliance with the direction of the Court, from 1987 i.e the date of application, and that the dispute in the appeal is with regard to the actual date from which the pension is liable to be paid and also as to the interest and cost ordered. 3. The Writ Petitioner was a freedom fighter aged above 86 years, who had participated in the Quit India Movement in 1942 and was arrested, being an accused in W.A No. 1555 of 2010 and COC No. 1340 of 2010 :3: C.C.61 of 1118 (M.E.) of the Judicial First Class Magistrate's Court, Karunagappilly. Contending that the petitioner was an 'under trial' prisoner from 02.02.1942 to 10.08.1942 and that he had to remain underground for more than six months, from 10.08.1942 to 16.06.1943, in connection with the Quit India Movement, requests were made before the State as well as the Central Government for granting the pension as payable to the freedom fighters. Since the requests made by the petitioner did not evoke any positive response, W.P.(C) No. 19925 of 2003 was filed before this Court, which culminated in Ext. P1 judgment dated 07.04.2004, whereby the credentials of the writ petitioner as a freedom fighter, based on the available materials, were held as acceptable and accordingly the State was directed to reconsider the matter, after holding a fresh enquiry. The State was also directed to forward the necessary recommendation on the petitioner's application for pension under the SSSP W.A No. 1555 of 2010 and COC No. 1340 of 2010 :4: Scheme to the Central Government, once the genuineness of the materials / certificate was established. 4. In spite of the observations by this Court in Ext. P1 judgment, the request of the writ petitioner was turned down by the State, which led to the second round of challenge in W.P(C) 31117 of 2004. Both the Central Government as well as the State Government were parties to the said writ petition. After considering the rival claims, it was declared by this Court as per Ext. P2 judgment dated 08.08.2007, that the writ petitioner was a freedom fighter and the impugned order passed by the State was set aside, holding that, the writ petitioner was eligible for pension under the Kerala Freedom Fighters' Pension Rules. With regard to the claim for Pension under the SSSP Scheme, it was observed by this Court that, the finding of the respondent that the certificates produced by the Writ Petitioner were not acceptable, was unsupportable and the 'NARC' (Non-availability of Records Certificates) W.A No. 1555 of 2010 and COC No. 1340 of 2010 :5: produced was very much valid and acceptable. It was made clear that, the application for SSSP was liable to be recommended by the State, simultaneously directing the State to grant the Pension under the Kerala Scheme and to forward recommendation of the State to the Central Government, who in turn was directed to consider and finalize the matter as specified in the judgment. 5. The State being aggrieved of Ext. P2 judgment, sought to challenge the same by filing W.A No. 1117 of 2009, where interference was declined and the appeal was dismissed as per Ext. P3 verdict dated 09.06.2009 of the Division Bench. Accordingly, the matter was considered by the State Government, who passed Ext. P4 order dated 28.08.2009, granting the pension under the State Scheme and forwarded the application dated 15.10.2008 submitted by the writ petitioner (presumably the fresh one), with enclosures, duly recommending the same for sanction and payment, to the Central W.A No. 1555 of 2010 and COC No. 1340 of 2010 :6: Government. 6. On receipt of the proceedings as above, the Central Government considered the matter in the light of Ext. P2 judgment and Ext. P9 order dated 15.12.2009 was passed, rejecting the application for pension under the SSSP Scheme. On challenging Ext. P9, the learned Single Judge set aside the same and pension under the SSSP Scheme was directed to be paid with interest at the rate of 9 % p.a. from the date of application i.e. 12.11.2007, also awarding cost of Rs.25,000/-. Interest and cost awarded were directed to be satisfied by the additional second respondent, who according to the learned Single Judge, was quite responsible for the turn of events, in spite of giving several opportunities to have it rectified. Deprecating the course pursued by the additional second respondent, disciplinary proceedings were ordered to be taken against the said respondent, correctness of which is also under challenge in the Appeal. W.A No. 1555 of 2010 and COC No. 1340 of 2010 :7: 7. During the course of hearing, Sri. S. Krishnamoorthy, the learned Central Government Counsel submits that, the claim involved in the case in hand is not supported by any 'primary evidence', such as jail certificates, but for the secondary evidence. In such case, no pension could have been ordered to be paid from the date of application, but prospectively from the date of order; in view of the law declared by the Apex Court in Union of India and another Vs. Kausalya Devi (2007 (9) SCC 525) and by a Division Bench of this Court in Writ Appeal No. 1993 of 2010. 8. After hearing both the sides, this Court finds that, in view of the declaration of law in crystal- clear terms by the Apex Court, if the claim is supported by 'primary evidence', the benefit is liable to be paid from the date of application itself as mentioned in paragraph 5 of the decision rendered by the Apex Court as reported in 2007 (9) SCC 525 (cited supra) and in other cases, where it is based on W.A No. 1555 of 2010 and COC No. 1340 of 2010 :8: 'secondary evidence', it can only be from the date of order. 9. Applying the above law to the case in hand, it is evident that, the claim in the instant case was sought to be substantiated, placing reliance on 'PKC' (Personal Knowledge Certificate), 'CPC' (Co-prisoners Certificate) and NARC (Non-availability of Records Certificate), as no primary evidence by way of certificate issued by the jail authorities was available. In other words, the claim was sought to be substantiated on the basis of 'secondary evidence' and as such, in view of the law declared as above, the pension payable to the writ petitioner under the SSSP Scheme cannot be from the date of application i.e. 12.11.1987; but can only be prospective. The verdict passed to the contrary by the learned Single Judge is liable to be intercepted to the said extent. It is ordered accordingly. W.A No. 1555 of 2010 and COC No. 1340 of 2010 :9: 10. It is brought to the notice of this Court that, during the pendency of the above proceedings, orders were passed by the Central Government, complying with the directions contained in the impugned judgment, ordering payment of pension under SSSP Scheme with effect from 12.11.1987 and that the entire arrears have been disbursed already. The dispute left over is only with regard to the sustainability of awarding interest and cost and also as to the direction to initiate disciplinary proceedings. In view of the declaration of law, based on the verdict passed by the Supreme Court in the decision cited supra (the writ petitioner having sought to substantiate the claim on the basis of secondary evidence and not on the basis of any primary evidence), the liability to pay the pension cannot be dated back to the date of application and as such, there cannot be any liability to pay interest. 11. It remains a fact that the Central Government sanctioned the pension under SSSP Scheme W.A No. 1555 of 2010 and COC No. 1340 of 2010 :10: w.e.f. 11.12.1987 i.e. the date of application as ordered by the learned Single Judge and the arrears of the Pension has been disbursed already. It has to be borne in mind, that the Writ Petitioner was enabled to enjoy the fruits of the decree almost on the eve of his life, after having crossed the age of 86 years, as the application preferred about 2 ½ decades back was not properly acted upon; initially by the State and then by the Centre / Union. Several rounds of litigations were necessitated leading to Exts. P1, P2 and P3 verdicts, finally leading to the impugned judgment and the present Writ Appeal / Contempt Petition. In the said circumstances, we do not find it as a fit case, where any refund is to be ordered in favour of the appellant; more so, when the liability to satisfy interest, which may come to a substantial extent ordered from 12.11.1987, has been intercepted and set aside by this Court. W.A No. 1555 of 2010 and COC No. 1340 of 2010 :11: 12. The remaining question is with regard to the sustainability of cost imposed, making the additional second respondent 'personally liable' for the same and the disciplinary proceedings ordered to be pursued against the said officer. It is to be noted that the earlier rounds of litigations were being resisted by the State, who was contending that, the certificates produced by the writ petitioner were not acceptable and that the application was not liable to be forwarded to the Central Government with necessary recommendation for granting pension under the SSSP Scheme. It was after the dismissal of the writ appeal, preferred by the State, as per Ext. P3 judgment of the Division Bench of this Court, that the State passed Ext. P4 order dated 28.08.2009 sanctioning the pension under the State Scheme and forwarded the application dated 15.10.2008 (presumably the fresh one) with necessary recommendation to the Central Government. In other words, the respondents in the Writ Petition were made W.A No. 1555 of 2010 and COC No. 1340 of 2010 :12: to act upon the application of the writ petitioner, only after passing Ext. P4 order dated 28.08.2009 by the State (forwarding the concerned application with the necessary recommendation) and never before. It was after receipt of such application and proceedings, that the matter was considered by the Central Government, who called for a report from the State, as per Ext. P8 letter dated 16.08.2008, followed by Ext. P9 order dated 15.12.2009, however, rejecting the application for the reasons stated therein. 13. The appellant / Union of India, who was contesting the matter, with reference to the law declared by the Apex Court in Kausalya Devi's Case (cited supra) has virtually succeeded in part, as to the liability to pay the pension, only from the date of the order and not from the date of application (for want of any 'primary evidence'). We find that, no further steps need to be pursued against the second respondent, by way of disciplinary proceedings and W.A No. 1555 of 2010 and COC No. 1340 of 2010 :13: there is no reason to sustain the cost ordered. We set aside the direction given by the learned Single Judge in this regard as well. The Writ Appeal is allowed in part. In view of the turn of events as above, we find that there is no contumacious act on the part of the respondent / contemnor in COC 1340 of 2010 and the same is dismissed accordingly. Sd/ J. CHELAMESWAR, CHIEF JUSTICE Sd/ P. R. RAMACHANDRA MENON, JUDGE kmd /True Copy/ P.A. to Judge