IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 22010 of 2006(T) -------------------------------------- PETITIONER(S): ----------------------- V.E. KARUNAKARAN, AGED 76, ATHIKATTU HOUSE, PERUMTHURUTH, S.L. PURAM P.O., CHERTHALA, ALAPPUZHA DISTRICT. *ADDL. P2 IMPLEADED. 2. SANTHAMMA, W/O. V.E.KARUNAKARAN, ATHIKATTU, PERUMTHURUTHU, S.L.PURAM P.O., CHERTHALA. *ADDL. P2 IS IMPLEADED AS PER ORDER DTD. 4.1.08 IN IA. 12069/07. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): -------------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION, LOKNAYAK BHAVAN, NEW DELHI. 2. THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. *ADDL. R3 IMPLEADED. 3. THE STATE OF KERALA REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPT. SECRETARIAT, THIRUVANANTHAPURAM. *ADDL. R3 IS IMPLEADED AS PER ORDER DTD. 12.12.08 IN IA. 15971/2008. R1 & R2 BY ADV. SMT.MOLLY JACOB, CGC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22010/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DTD. 21.4.1998. P2:- COPY OF THE APPLICATION AND ORDER IN P.E. 8/1122 DTD. 3.8.2001 OF THE C.J.M. COURT, ALAPPUZHA. P3:- COPY OF THE CERTIFICATE DTD. 3.4.1998 ISSUED BY P.K.SUKUMARAN. P4:- COPY OF THE CONVICT REGISTER RELATING TO PANICKER SUKUMARAN ISSUED BY THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM DT. NIL. P5:- COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DTD. NIL. P6:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. 36883/2001 DTD. 11.8.2003. P7:- COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 25.7.2002. P8:- COPY OF THE JUDGMENT IN WPC. 23645/2004 DTD. 30.5.2005 OF THIS HONOURABLE COURT. P9:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT. 15.12.2005. P10:- COPY OF THE ORDER THE DISTRICT COLLECTOR, ALAPPUZHA DTD. 23.10.1987. P10:- COPY OF THE LETTER DT.5.8.2005 OF THE PRINCIPAL , SECRETARY TO GOVERNMENT. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 22010 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st day of July, 2010. J U D G M E N T This writ petition was originally filed by Sri. V.E. Karunakaran, a freedom fighter, claiming freedom fighter's pension under the Swathantratha Sainik Samman Pension Scheme of the Government of India. The same was rejected by the 1st respondent by Ext. P9 order. That order is under challenge before me. 2. During the pendency of this writ petition, the petitioner died and his widow has come on record as additional 2nd petitioner to prosecute the writ petition. 3. The contention of the petitioner is that for becoming eligible for pension under the SSS Pension Scheme, what the petitioners have to produce is a personal knowledge certificate from a freedom fighter who has undergone minimum two years imprisonment along with a non-availability of records certificate (NARC for short), which the 1st the petitioner had done. But, no reasons are forthcoming either in Ext. P9 order or in the counter affidavit filed on behalf of respondents 1 and 2 as to why the personal knowledge certificate is not acceptable. As far as NARC is concerned, the petitioner points out that that question is settled by a decision of this Court in W.P(C) No. 23645/2004 filed by the 1st petitioner, wherein, this Court had categorically held that the NARC produced by the 1st petitioner is an acceptable NARC for the purpose of granting pension. Nobody has challenged that judgment, which is produced as Ext. P8 and therefore the respondents could not have validly rejected the claim for pension filed by the 1st petitioner, which is now being prosecuted by the 2nd petitioner. 4. The petitioner has, along with the reply affidavit, produced the recommendation of the State Government pursuant to Ext. P8 judgment, wherein after finding that the personal knowledge W.P.C. No. 22010/2006. -: 2 :- certificate of Kunjan Sukumaran is not acceptable, they have recommended the case of the 1st petitioner for pension in the light of the observations contained in Ext. P8, especially those relating to non-availability of records certificate and personal knowledge certificate. But, they have not stated as to why the personal knowledge certificate of Sri. Kunjan Sukumaran is not acceptable. Respondents 1 and 2 would support Ext. P9 holding that both the personal knowledge certificate and the NARC are not acceptable for the purpose of granting pension to the petitioner. 5. I have considered the rival contentions in detail. 6. The reasons stated in Ext. P9 for rejecting the petitioner's application are essentially that the NARC and the personal knowledge certificate are not acceptable. According to them, for a valid NARC, the same should be 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.” Since the 1st petitioner had not produced a NARC in that form, the NARC is not acceptable, is the contention raised. As far as the personal knowledge certificate of Sri. K. Sukumaran is concerned, the objection is that it does not contain whether “(a) the petitioner was a proclaimed offender or (b) one on whom an award for arrest was announced or (c) one for whose detention orders were issued but he evaded arrest.” These questions were earlier considered by me in Ext. P8 judgment, which reads as follows: “The petitioner is a freedom fighter who is a recipient of pension under the State Scheme as evidenced by Ext. P10. His W.P.C. No. 22010/2006. -: 3 :- application for pension under Swatantrata Sanik Samman Pension Scheme of the Central Government was rejected by the 1st respondent on the ground that the State Government did not recommend his claim for pension for the following reasons: “(i) The NARC produced by you does not have any details regarding your involvement to the case. (ii) The certificate of Shri. Ittiyathi Vasudevan is not acceptable, as he is not an eligible certifier. (iii) The abscondence certificate from Shri. P.K. Sukumaran is not acceptable, as he has not suffered two years imprisonment connected with the National Freedom Struggle. (iv) The Personal Knowledge Certificate from Shri. S. Kumaran is not acceptable, as it is not in the prescribed form. (v) The abscondence certificate issued by Shri. Narayanan Ramankutty is also not acceptable, as he was certified that you had gone underground for more than two years, which is against your claim of one year underground suffering. (vi) All the events of the Punnapra Vayalar Struggle were in October, 1946. The claimed suffering from the very beginning of the struggle seems doubtful in the absence of acceptable evidence to prove the claim.” The respondents have filed counter affidavits and they support Ext. P 12. The petitioner submits that if he is able to clear objection nos. (i) and (iii), he becomes entitled to pension under the SSS Pension Scheme because, as per the above scheme, those two documents would suffice to grant him pension. 2. Objection (i) is that the NARC produced by the petitioner does not have any details regarding his involvement in the case. Ext. P3 is the NARC produced by the petitioner. It states thus: “Application for copy of arrest warrant. It is not stated to which court the records relate. There is nothing to show that the said P.E. No. 8/1122 related to this court. If at all there was such a case it is not known what way the petition was connected with it. The said records is not available in court.” It clearly shows that the records relating to the case are not available in the court. When records are not available, I do not understand how the court can make the further observations. The very object of NARC is only to show that records relating to the case are not available. When Ext. P3 NARC specifically states so, I am of opinion that it is an acceptable NARC for the purpose of granting pension. W.P.C. No. 22010/2006. -: 4 :- 3. The third objection raised in Ext. P12 is that the abscondence certificate from Sri. P.K. Sukumaran is not acceptable as he has not suffered two years imprisonment connected with National Freedom Struggle. Ext. P5 is the extract of the convict register of Central Prison, Trivandrum, which admittedly relates to P.K. Sukumaran. The same states that the said P.K. Sukumaran was admitted into the jail on 21-3-1952 and that he was released on 26-1- 1955. In Ext. P4 Personal Knowledge Certificate, Shri. P.K. Sukumaran has stated that he is a recipient of Central Freedom Fighters' Pension under Ministry of Home Affairs Order No. 19/363/72/FFD/FF.VIII. As such, the issue can be resolved by a mere perusal of the file relating to the said order to ascertain whether P.K. Sukumaran's certificate is acceptable or not. As such, the two objections referred to above are not sustainable. If they are not sustainable, according to the petitioner, on the basis of those documents, he is entitled to get SSS pension notwithstanding the other objections. This Court has already held that once a person is in receipt of State pension, he is entitled to get his application under the Central scheme processed without any further enquiry. I, therefore, direct the 3rd respondent to consider the said two documents in accordance with the observations herein and if the same are sufficient to recommend the case of the petitioner for SSS pension, the 3rd respondent shall forward the application and connected papers of the petitioner along with the recommendation of the 3rd respondent to the 1st respondent within a period of one month from the date of receipt of a copy of this judgment. The 1st respondent shall process the same and pass final orders within a further period of one month from the date of receipt of the papers from the 3rd respondent.” (Emphasis supplied) In the same, I had categorically entered a finding that the NARC produced by the petitioner is an acceptable NARC for the purpose of granting pension. Therefore, neither the State Government nor the Union Government could have entered a contrary finding which they have done, which actually amounts to contempt of court. Even otherwise, no freedom fighter in India can produce a NARC in the form prescribed by respondents 1 and 2 as quoted above. All what a person can do is to produce a certificate from the court that the records relating to the case pursuant to which he went underground are not available. A freedom fighter cannot be expected to go around W.P.C. No. 22010/2006. -: 5 :- all the Government offices in the whole State and get certificates from each office saying that records relating to his case are not available in that office. That would be asking the freedom fighter to do the impossible. Even otherwise, the Supreme Court and this Court had repeatedly held that in case of Government documents in support of a freedom fighter's claim for pension, the Government themselves should arrange to obtain those records. Therefore, the finding of the respondents that the NARC produced by the petitioner is not acceptable is totally unsustainable. 7. As far as the personal knowledge certificate of Sri. Kunjan Sukumaran is concerned, his credentials for issuing that certificate is not disputed, insofar as the same is supported by valid primary documents relating to his internment in the Central Prison, Thiruvananthapuram, copy of which is produced as Ext. P4. He has certified thus in Ext. P3: “I hereby certify that Sri. V.E. KARUNAKARAN, S/o. Sri. Ittyathi resident of Athikattu, S.N. Puram P.O., Alappuzha district, is bona fide freedom fighter who, (a) Remained underground for more than six months for the period from October, 1946 to November, 1947 as he was: (i) A proclaimed offender; or (ii) one when an award for arrest was announced; (iii) one for whom detention orders were issued but he evaded arrest; (iv) ordered to be externed from his district, or interned in his home for a period of more than six months from. By the special Magistrate court in case no.” Of course, the certifier had not specifically scored off the clauses which are not applicable. But, the same specifically shows that the W.P.C. No. 22010/2006. -: 6 :- petitioner was underground for more than six months for the period from October, 1946 to November, 1947. In Ext. P1 application, the petitioner had specifically stated that he was underground for one year from 28-10-1948 till November 1947 as a result of warrant in P.E. No. 8/1122 M.E. On a reading of the application together with Ext. P3 personal knowledge certificate, I am satisfied that the petitioner has sufficiently proved his case for Swathanthratha Sainik Samman Pension. Therefore, the 2nd petitioner, widow of the 1st petitioner, has become entitled to payment of pension due to the 1st petitioner with arrears. 8. In view of my above finding, I direct respondents 1 and 2 to pay to the 2nd petitioner, pension under Swathanthratha Sainik Samman Pension Scheme in respect of the suffering of the 1st petitioner in the Punnapra Vayalar struggle from the date of receipt of Ext. P1. Arrears shall be paid within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/