IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 7187 of 2008(E) --------------------------------------- PETITIONER(S): ---------------------- 1. P.A.MATHEW, AGED 85, PATHUTHAYYIL VALIYA VEEDU, THUMPOLY P.O., ALAPPUZHA. (DIED) *ADDL. 2ND PETITIONER ADDL. P2: SARAMMA, AGED 72, W/O.P.A. MATHEW, PATHUTHAYYIL VALIYA VEEDU, THUMPOLY P.O., ALAPPUZHA. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): -------------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, KHAN MARKET, NEW DELHI. 2. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM. R1 BY SRI.T.P.M.IBRAHIM KHAN, ASST.S.G OF INDIA, ADV. SRI.S.KRISHNAMOORTHY, CGC. R2 BY GOVT. PLEADER MR.SANDESH RAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/08/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 7187/2008-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPLICATION OF THE PETITIONER DATED 30/04/1998. EXT.P2: COPY OF THE STATE PENSION ORDER DATED 11/07/2000 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUZHA. EXT.P3: COPY OF THE APPLICATION AND THE ORDER IN CASE NO.P.E.7/1122 OF THE C.J.M. COURT, ALAPPUZHA DATED 28/04/1981. EXT.P4: COPY OF THE OF THE CERTIFICATE ISSUED BY KUNJAN SUKUMARAN DATED 30/06/1998. EXT.P5: COPY OF THE EXTRACT OF THE CONVICT REGISTER RELATING TO PANICKER SUKUMARAN DATED NIL ISSUED BY THE SUPERINTENDANT OF CENTRAL PRISON, THIRUVANANTHAPURAM. EXT.P6: COPY OF THE ORDER OF THE DEPUTY SECRETARY TO GOVERNMENT OF INDIA DATED NIL. EXT.P7: COPY OF THE CERTIFICATE NARAYANAN RAMANKUTTY DATED 25/09/2001. EXT.P8: COPY OF THE CENTRAL PENSION ORDER DATED 26/11/1999 BY THE UNDER SECRETARY TO GOVERNMENT. EXT.P9: COPY OF THE EXTRACT OF THE CONVICT REGISTER OF THE CENTRAL PRISON THIRUVANANTHAPURAM DATED 27/01/1955. EXT.P10: COPY OF THE LETTER OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 17/01/2004. EXT.P11: COPY OF THE CERTIFICATE OF SRI.H.K. CHAKRAPANI DATED 23/09/2007. EXT.P12: COPY OF THE CENTRAL PENSION ORDER OF H.K. CHAKRAPANI DATED 18/06/2003 ISSUED BY THE UNDER SECRETARY OF INDIA. EXT.P13: COPY OF THE CONVICT REGISTER RELATING TO H.K. CHAKRAPANI ISSUED BY THE SUPERINTENDANT OF CENTRAL PRISON, THIRUVANANTHAPURAM DATED NIL. EXT.P14: COPY OF THE ORDER OF THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS DATED 01/11/2007. EXT.P15: COPY OF THE REPORT DATED 25/04/2007 OF THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE MINISTRY'S LETTER DATED 1ST NOVEMBER, 2007. //TRUE COPY// P.S. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.7187/2008-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 30th day of August, 2010 J U D G M E N T In this writ petition, the challenge is against the orders Exts.P14 and P15 which are the orders refusing Swatantrata Sainik Samman Pension and the communication of the State Government refusing to recommend the application for pension respectively. 2. The second petitioner is the widow of late Shri P.A.Mathew who had filed this writ petition and who died during the pendency of the writ petition. It is averred in the writ petition that late Shri P.A. Mathew was an active participant of Punnapra-Vayalar Struggle and, hence, the police arrayed him as an accused before the Special Magistrate Court, Alappuzha in P.E.7/1122(M.E) and the Court issued a non-bailable warrant against the first petitioner and then in order to evade arrest, he had gone underground for more than six months from October 1946 to July 1947 and consequently was declared as a proclaimed offender. Ext.P1 is the copy of the application for grant of S.S.S. Pension. Ext.P2 is the copy of the order granting pension under the Kerala Freedom Fighters' Pension Rules. It is pointed out that at present no official documents are available in respect of P.E.7/1122 and Ext.P3 W.P.(C). No.7187/2008 -:2:- is the copy of the copy application and the order in case No.PE.7/1122. Therein, the C.J.M. Court, Alappuzha has certified that the records of the year 1122 have already been destroyed and, accordingly, the copy application was rejected. This was also placed by the petitioner before the Government. 3. The copy of the Personal Knowledge Certificate produced by the petitioner from Shri Kunjan Sukumaran is Ext.P4. Ext.P5 is the copy of the extract of the convict register in respect of the said certifier and Ext.P6 is the order granting S.S.S. Pension to him. On receipt of a further direction by the District Collector to produce other records, the petitioner produced the Personal Knowledge Certificate of Shri Narayanan Ramankutty a copy of which is available as Ext.P7 and, Ext.P8 is the copy of the order granting Central Pension to the said certifier and Ext.P9 is the true copy of the extract of the convict register of the Central Prison, Thiruvananthapuram in relation to the said certifier. The State Government again did not recommend the application which is evident from Ext.P10 communication of the District Collector which led to the deceased freedom fighter filing W.P.(C). No.1138/2006. During the pendency of the said writ petition, the late husband of the second petitioner W.P.(C). No.7187/2008 -:3:- produced the Personal Knowledge Certificate issued by Shri H.K.Chakrapani a copy of which is produced as Ext.P11. Ext.P10 is a true copy of the order granting S.S.S Pension to the said certifier and Ext.P13 is the true copy of the convict register relating to Shri H.K.Chakrapani. In W.P. (C).No.1138/2006, this Court directed the Government to dispose of the matter again. Ext.P14 is the order passed by the Central Government. 4. In Ext.P15, the State Government has chosen not to recommend the application but to forward the pension application along with the enclosures. 5. Heard the learned counsel for the petitioners and the learned Government Pleader. The learned counsel for the petitioner invited my attention to Ext.P15 to contend that none of the relevant aspects have been considered by the State Government. In paragraph (1) of Ext.P15, after referring to the Personal Knowledge Certificates issued by Shri Kunjan Sukumaran and Shri Narayanan Ramankutty and a certificate from Shri P.K.Chandranandan Ex-MLA and N.A.R.C from Chief Judicial Magistrate Court, Alappuzha it is specifically mentioned that “the District Collector, Alappuzha has reported that no case records related to the case are available in the concerned Court, Police Station and Collectorate also”. It is further mentioned that the W.P.(C). No.7187/2008 -:4:- first petitioner did not produce any additional documents. The learned counsel for the petitioners submitted that the deceased could not have produced any additional documents as no records are available in any of the offices concerned and, therefore, the view taken by the State Government cannot be accepted also. I find force in the above submission. When the District Collector reported that no case records relating to the case are available in the concerned court, Police Station and Collectorate, there is no point in directing the petitioner to produce any additional documents. Evidently, the period of the struggle is between 1946 to 1947. The application is filed only in 1998. Therefore, the late petitioner could not have been expected to maintain contemporaneous records. He could have produced the records only if available from the Criminal Court, Police Station and the Collectorate. Therefore, the adverse comment made in Ext.P15 on the conduct of the late petitioner in not producing additional documents cannot be accepted. 6. In Ext.P15, no reference is made to the Personal Knowledge Certificate issued by Shri H.K.Chakrapani. But, in the counter affidavit filed by the State Government, in paragraph (5), it is stated that “the certifier Shri H.K.Chakrapani was granted Swatantrata Sainik Samman W.P.(C). No.7187/2008 -:5:- Pension in 2003 by giving him the benefit of doubt. Hence, the Personal Knowledge Certificate issued by him cannot be relied upon”. The grant of S.S.S. Pension to the said certifier is evident from Ext.P12. It is clear that the various certificates produced by the said certifier were examined by the Central Government and pension was granted. Apart from that, this certifier is a well known freedom fighter whose certificates have been produced by other applicants also and this Court had occasion to consider the adequacy of such certificates in various writ petitions and at no point of time the State Government had a case that he is not a competent certifier. Therefore, it is really unfortunate as to how in paragraph (5) such a comment has been made that his certificate cannot be relied upon. His period of imprisonment, as evident from Ext.P13, is from 21/03/1952 to 27/01/1955, that means, nearly 3 years. The qualification of the certifier is only that he should undergo imprisonment for a minimum period of 2 years. Really, he is a competent certifier. Apart from that, once he was granted pension by the Central Government, the State Government cannot sit in appeal on the same and comment upon the qualification of the said certifier, that too without any justification. W.P.(C). No.7187/2008 -:6:- 7. Therefore, the attitude taken here is not justifiable. Evidently, in Ext.P15, only the certificates of other certifiers have been considered and they have also been rejected, for want of supporting official documents. When it is evident from the report of the District Collector which is made mention in Ext.P15 that no documents are available, those certificates could not have been rejected for want of said official documents. 8. The learned Government Pleader pointed out that normally N.A.R.C's are produced from the concerned courts, but the Central Government requires a proper certificate issued by the State Government itself. Evidently, the said stand cannot be accepted. In so many cases, even though the Central Government has been taking such a stand, as far as this State is concerned, the State Government has not been issuing any certificates by way of NARC by any of the Departments. Therefore, the parties can only produce the certificate from the concerned jail, where the applicant has undergone conviction or from the authorities of the police or from the concerned courts, in other cases. Therefore, it cannot be said that the NARC produced by the first petitioner from the C.J.M. Court is in any way defective for want of a further certificate from the State Government. Herein, as rightly pointed out by the learned W.P.(C). No.7187/2008 -:7:- counsel for the petitioners, Ext.P15 evidences the fact that the State Government has considered the report of the District Collector wherein he has reported that no records are available. Therefore, actually, Ext.P15 itself has recorded the non-availability of records. 9. This Court in Judgment in W.P.(C).No.10843/2010 had occasion to consider the insistence of the certificate in the following form:- “All concerned authorities of the State Government who could have relevant records in respect of the claim of the applicant have been consulted and it is confirmed that the official records of the relevant time are not available.” The learned Single Judge was pleased to hold as follows:- “I have held earlier in other similar cases that no freedom fighter in this country can furnish such an NARC. The petitioner has already produced an NARC from the concerned Magistrate Court where according to the petitioner the case against the petitioner's husband during the freedom struggle was registered pursuant to which he went underground. I am of opinion that, the W.P.(C). No.7187/2008 -:8:- petitioner cannot do anything else other than producing such an NARC. Even otherwise as far as the Government records are concerned the Supreme Court and this Court has again and again held that wherever records in respect of freedom fighters are to be obtained from the Government offices it is the duty of the Government to get the same. As such, I do not find any merit whatsoever in the ground for rejection of the NARC produced by the petitioner. Therefore, I hold that, the NARC (Ext.P8) produced by the petitioner is sufficient for the purpose of claiming pension under the Scheme.” 10. Herein also evidently, in the light of the report of the District Collector made mention of in Ext.P15 the State Government can issue another N.A.R.C., if it is required. Ext.P15 suffers from serious infirmity, especially, in the light of the fact that the Personal Knowledge Certificate of Shri H.K.Chakrapani along with the certificates of the certifier have not been examined. Therefore, Ext.P15 and the order passed by the Central Government-Ext.P14 are quashed. There will be a direction W.P.(C). No.7187/2008 -:9:- to the State Government to consider the Personal Knowledge Certificates including the certificate issued by Shri H.K.Chakrapani and forward a fresh Verification-cum- Entitlement Report showing the recommendation to the Central Government in the light of the above findings along with proper NARC within a period of six weeks from the date of receipt of a copy of this Judgment. Ext.P15 evidences the fact that already the District Collector has reported that no records are available with the concerned court, Police Station and Collectorate and, therefore, the said report can be utilised for issuing a fresh NARC. On receipt of the Verification-cum-Entitlement Report from the State Government along with other documents, the Central Government will reconsider the application within a further period of three months. In the event of grant of pension, the entitlement of the second petitioner for pension from the date of receipt of the application will also be considered. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms