IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 WP(C).No. 5922 of 2010(M) -------------------------------------- PETITIONER: ------------------- MARIA, W/O.LATE AUGUSTINJU MARIAN, VALIYATHEYIL, PARAVOOR, VADACKAL P.O., ALAPPUZHA – 3. BY ADVS. SRI.K.K.SATHEESH, SRI.THOMAS T.KURICHIYANI. RESPONDENT: ---------------------- UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVT., MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI – 110 003. BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5922/2010-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 20/10/1947 PASSED BY THE SPECIAL MAGISTRATE COURT, ALAPPUZHA IN CASE NO. P.E.9/1122 ME( CRIME NO. 48/1122 ME OF THE ALLEPPEY POLICE STATION). EXT.P.2: COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 04/05/1973. EXT.P.3: COPY OF THE APPLICATION DTD. 21/02/2005 SUBMITTED BY PETITIONER'S LATE HSUBAND. EXT.P.4: COPY OF THE AFFIDAVIT DULY ATTESTED DTD. 17/02/2005 BY THE JFCM, ALAPPUZHA. EXT.P.5: COPY OF THE NARC FROM THE SPECIAL SUB JAIL, ALAPPUZHA DT. 20/10/1998. EXT.P.6: COPY OF THE CPC ISSUED BY SRI. P.A. SOLOMON EX-MP DATED 03/02/2005. EXT.P.7: COPY OF THE JUDGMENT DTD. 16/08/2007 PASSED BY THIS HONOURABLE COURT IN W.P.(C).NO.19898/2005. EXT.P.8: COPY OF THE LETTER NO. 68525/FFP A2/2005/GAD DTD. 19/10/2007 ISSUED BY THE STATE GOVT. TO THE PETITIONER. EXT.P.9: COPY OF THE ORDER NO. 52/CC/K/81/2005-FF/SZ DTD. 19/11/2009 ISSUED BY THE RESPONDENT. RESPONDENTS' EXHIBIT: EXT.R1: COPY OF THE SALIENT FEATURES OF THE SWATANTRATA SAINIK SAMMAN PENSION SCHEME 1980. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 5922 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2010 J U D G M E N T The petitioner's late husband was a freedom fighter, who had actively participated in the Punnapra-Vayalar Movement which is now accepted as a freedom movement. He was accused No.73 in case No.P.E.9/1122 ME (Crime No.48/1122 ME of Alleppey Police Station) as revealed from Ext.P1. Petitioner's husband had undergone undertrial imprisonment in the defunct Sub Jail at Alleppey during the period from 14.07.1122 ME to 3.3.1123 ME. He was discharged under Section 207 (1) of the Criminal Procedure Code. The late husband of the petitioner was sanctioned freedom fighter's pension under the State scheme. He submitted Ext.P3 application for Pension under the Swatantrata Sainik Samman Pension Scheme, along with Ext.P1 order passed by the Special Magistrate Court, Alappuzha, Ext.P4 affidavit, Ext.P5 NARC from the Special W.P.(C)No. 5922 of 2010 -2- Sub Jail, Alappuzha and Ext.P6 Co-prisoner's certificate issued by Sri. P.A. Solomon Ex.M.P. The petitioner's husband had died on 10.10.2005. By Ext.P7 judgment this court directed the State Government to consider the claim of the petitioner's late husband for pension under the Swatantrata Sainik Samman Pension Scheme. Pursuant thereto the State Government recommended the case of the petitioner's late husband for SSS Pension by report No.28490/FFP A2/2009/GAD dated 29.05.2009. But by Ext.P9 order, the respondent had rejected her claim on the ground that it does not meet the eligibility criteria and evidentiary requirements of the Scheme. The petitioner has therefore filed this writ petition seeking the following reliefs: i) declare that the petitioner is entitled to get the benefit of SSS Pension due to her late husband on the basis of the recommendation made by the State Government; ii) call for the records leading to the issue of Exhibit-P9 and quash its original by issuance of a writ of certiorari; iii) issue a writ of mandamus or other appropriate writ, direction or order compelling the respondent to grant the benefit of SSS Pension to the petitioner due to her late husband and also the dependent family pension under W.P.(C)No. 5922 of 2010 -3- the SSS Pension Scheme to the petitioner, with the actual arrears due to her late husband within a stipulated time; 2. The respondent has filed a counter affidavit which does not controvert any of the contentions of the petitioner. What they have done in the form of a counter affidavit is to attach a document titled “Salient Features of Swatantrata Sainik Samman Pension Scheme, 1980”. That does not state as to how the petitioner's claim is not maintainable and as to why the document submitted by the petitioner cannot be accepted. 3. I have considered the rival contentions in detail. Petitioner has produced sufficient documents in support of the petitioner's claim for pension in respect of the jail sufferings of the petitioner's late husband, who was a freedom fighter. The State Government was satisfied that the claim of the petitioner is genuine and recommended for pension. Earlier the State Government had also accepted the claim under the State Scheme and granted pension to the petitioner's late husband. The respondents have not W.P.(C)No. 5922 of 2010 -4- chosen to state as to why the documents produced by the petitioner are not acceptable as evidence in support of the claim of the petitioner. As such, I am constrained to hold that the petitioner has sufficiently proved her claim especially in the absence of any averments in the counter affidavit specifically refuting the contentions of the petitioner. 4. Accordingly the writ petition is allowed. Ext.P9 is quashed. The respondent is directed to pay pension under the Swatantrata Sainik Samman Pension Scheme to the petitioner. Arrears shall be paid within a period of two weeks and the petitioners shall be continued to pay pension in every month as per the SSS Pension Scheme. 5. Before parting with the case I am constrained to make some observations on the conduct of cases under SSS Pension Scheme before this court by the Union of India. I find that in almost all cases, the so-called counter affidavit is prepared by the Ministry and forwarded either to the Assistant Solicitor General or the Central Government W.P.(C)No. 5922 of 2010 -5- counsel for filing. More often than not, these counter affidavits do not contain any material averments controverting the contentions in the writ petition, but only narrates the provisions of the SSS Pension Scheme and simply state that the petitioner has not proved his/her claim. I strongly disapprove of this conduct of the respondent in the matter of conducting cases before a High Court. I am of opinion that, that shows disrespect by the Ministry to the High Court. The Ministry should realise that they are not conducting cases before a Tribunal or a quasi- judicial authority but is conducting cases before a constitutional court. Then they should conduct cases with the respect and dignity which a High Court deserves. Preparing and filing counter affidavit not prepared or vetted by the Assistant Solicitor General or the Central Government is not the way to conduct cases in a High Court. In fact, in this case, I was stunned to see that the counter affidavit is devoid of any averment whatsoever regarding the contentions of the petitioner. W.P.(C)No. 5922 of 2010 -6- 6. Further the respondent insist on a particular form of NARC which they have quoted in the Salient Features of SSS Pension Scheme, 1980, which is produced as Ext.R1(a) which reads thus: “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.” I am of opinion that the freedom fighters are expected to produce only the NARC in respect of their imprisonment or the case relating to them. They cannot be expected to go around various Government offices searching for NARCs in all the Government offices which is what is insisted by the Union Government. Nobody can obtain such an NARC. I am of opinion that such insistence is demeaning to ourselves because the very object of granting pension to freedom fighters is to honour our freedom movement, thereby honouring ourselves. The Supreme Court and this court has held that whenever such certificates are to be given by Government officials, the Government themselves should get the same. In fact the certificate of the kind W.P.(C)No. 5922 of 2010 -7- mentioned can be given only by the State Government. When the State Government themselves have recommended the petitioner's case based on the NARC produced by the petitioner, then they must have been satisfied about the NARC as well. That being so, there is no rhyme or reason why an NARC of the kind mentioned above should be insisted upon, if it is no for denying benefit to the petitioner on some ground or other. Applicants for freedom fighter's pension deserve to be treated with the respect they deserve, because they sacrificed their life for the country. Even when they are unable to produce documents proving their claim for pension they do not cease to be a freedom fighter because denial of pension does not make them any the less freedom fighters if they are freedom fighters. They should not be treated like beggars holding out their hand for arms. Therefore even when their claim are rejected the State and Union should treat them with the respect freedom fighters deserve. I am of the opinion that only those persons who do not have patriotism and self respect can W.P.(C)No. 5922 of 2010 -8- treat freedom fighters in the way the petitioner has been treated. A copy of this judgment shall be forwarded to the Home Secretary of Union of India directly for information and necessary action, if he himself has some patriotism and self respect left in him. S. SIRI JAGAN JUDGE shg/