IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 WP(C).No. 31357 of 2005(G) ------------------------------------ PETITIONER(S): ------------------------ PAPPU VASU, CHANIYIL HOUSE, VAREKATTU, VAYALAR EAST.P.O, CHERTHALA, ALAPPUZHA DISTRICT. BY ADV. SRI.N.RADHAKRISHNAN RESPONDENT(S): ------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFIARS, F.F.DIVISION, LOK NAYAK BHAVAN, NEW DELHI. 2. THE DEPUTY SECRETARY TO THE GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, NEW DELHI. 3. THE SPECIAL SECRETARY TO THE GOVERNMENT OF KERALA, GAD (FREEDOM FIGHTERS SECTION), SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DISTRICT COLLECTOR, ALAPPUZHA. BY GOVERNMENT PLEADER SRI.M.R. SABU ADV.K.R.SUNIL, CGC FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31357 of 2005(G) APPENDIX PETITIONER'S EXHIBITSl EXT.P1 - TRUE COPY OF PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA DATED 31.12.1973. EXT.P2 - TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED FROM THE MEDICAL COLLEGE, ALAPPUZHA. EXT.P3 - TRUE COPY OF THE LETTER NO.18158/FFP A2/2003/GAD DATED 4.7.2003 OF THE GOVERNMENT OF KERALA. EXT.P4 - TRUE COPY OF THE LETTER NO. VIP/MOS(C) MHA/2004/115 DATED 3OTH JANUARY 2004. EXT.P5 - TRUE COPY OF THE LETTER NO.DO NO. 577(MOS(G))2004 DATED 30.11.2004. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== W.P(C)No.31357 of 2005 ================== Dated this the 24th day of October, 2008. J U D G M E N T An 82 year old freedom fighter is seeking payment of Freedom Fighter's Pension under the Swathanthratha Sainik Samman Pension Scheme of the Government of India. The petitioner was accepted as a freedom fighter by the State Government and he is receiving pension under the Freedom Fighters State scheme, as evidenced by Ext.P1 proceedings of the District Collector, Allapuzha. The petitioner later applied for pension under the SSS pension scheme. By Ext.P3, the Government of Kerala recommended the petitioner's case for pension under the SSS pension scheme. Although, Exts.P4 and P5 communications were issued to two members of parliament who intervened on behalf of the petitioner, intimating them that the claim of the petitioner was being looked into, the petitioner was not favoured with any order in this respect. It is under the above circumstances, the petitioner has approached this Court seeking the following reliefs: “i) Issue a Writ of mandamus or any other appropriate Writ, Order or Direction directing respondents 1 & 2 to take immediate action for sanctioning W.P(C)No.31357 of 2005 - 2 - Swathanthratha Sainik Samman Pension of the Govt. of India and to direct the respondents concerned to disburse the same to the petitioner. ii) Issse a Writ of mandamus or any other appropriate Writ, Order or Direction directing respondents 1 & 2 to consider and pass appropriate orders on the case of the petitioner as expeditiously as possible.” 2. The petitioner's contention is that as per the SSS pension scheme a freedom fighter who is physically incapacitated due to firing and bullet injury is entitled to pension under the scheme. The petitioner submits that as is evident from Ext.P3, the police report available in the Collectorate, Alappuzha proves that “the petitioner was included as Serial Number 15 among those who were actually hit by bullet but have escaped from death.” Ext.P2 medical certificate issued from the T.D. Medical College Hospital, Alappuzha, certifies that the petitioner suffered permanent disability on account of post traumatic stiff shoulder and hip, on account of gun shot wound. The petitioner therefore submits that it is evident that the petitioner is eligible for pension under the SSS pension scheme. 3. A counter affidavit has been filed on behalf of the respondents 1 and 2 in which in paragraph 7, it is stated thus: “7.The petitioner in his application dated 25.1.1974 claimed three months lock up sufferings (without specifying any period) at Shertallai under Punnapra Vayalar Struggle W.P(C)No.31357 of 2005 - 3 - and physical incapacitation, due to bullet injuries. The claim was examined and rejected vide this Ministry's letter on 16.7.1974 due to the reason that his imprisonment being less than six months. After a lapse of about 29 years the petitioner has again submitted his application dated 22.4.1998 through the same Government's letter dated 4.7.2003 claiming for physically incapacitated due to firing and bullet injury. In such claims, as per SSS Pension Scheme, 1980., “A Certificate from the District Magistrate stating that permanent incapacitation was done by bullet injury/lathi charge sustained during participation in the National Freedom Struggle.” is required. The petitioner has not furnished any acceptable document in support of permanent incapacitation as required under the provision of the SSS Pension Scheme, 1980.” From the same, it is evident that if the petitioner furnishes a certificate from the District Magistrate stating that permanent incapacitation was caused to the petitioner by bullet injury/lathi charge sustained during the participation of the National Freedom Struggle, the petitioner would become entitled to pension under the SSS scheme. Here, by Ext.P3, the Government of Kerala who is the authority to recommend to the respondents 1 and 2 regarding the eligibility for pension under the SSS scheme has specifically stated that “on verification of the police report available in the Collectorate, Alappuzha, it is found that the applicant was included as Sl. No. 15th among who were actually hit by bullet but have escaped from death”. This only has been reported to the respondents 1 and 2 by Ext.P3. It is settled law as laid down by W.P(C)No.31357 of 2005 - 4 - several decisions of this Court and the Supreme Court, that it is the duty of the State Government and the Central Government to obtain certificates in respect of freedom fighters for the purpose of grant of freedom fighters pension, if the same are available in records of the Government and that such freedom fighters should not be driven to the task of going around Government offices and collecting certificates and testimonials for proving their claim for pension. Here the Government of Kerala themselves has certified that there is police report available in the Collectorate, Allapuzha proving that the applicant was one among those hit by bullet in the Punnapra-Vayalar struggle which has been accepted as a freedom struggle both by the State and Central Government. The petitioner has also proved by Ext.P2 certificate of disability that he has suffered permanent disability on account of the bullet injury. That being so, there cannot be any doubt that the petitioner has become entitled to pension under the SSS pension scheme and his case has been so recommended by the Government of Kerala as per Ext.P3. As such there is no reason whatsoever for the respondents 1 and 2 to deny pension to the petitioner under the SSS pension scheme. W.P(C)No.31357 of 2005 - 5 - Accordingly, this writ petition is allowed and the respondents 1 and 2 are directed to sanction pension under the SSS pension scheme to the petitioner. Orders in this regard shall be issued and arrears disbursed, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. S.SIRI JAGAN, JUDGE rhs