IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 WP(C).No. 165 of 2005(T) ------------------------------- PETITIONER(S): ------------------- SUHARAKUNJU, W/O.LATE MOHAMMED ABOOBACKER LABBA, KOLLINETHU CHITTOOR HOUSE, VALLIKUNNAM P.O. MAVELIKKARA, ALAPPUZHA DIST. KERALA STATE. BY ADVS. SRI.N.DHARMADAN, SENIOR ADVOCATE SMT.R.RANJINI RESPONDENT(S): -------------------- 1. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT OF INDIA, HOME AFFAIRS, GIRISH MANTRALAYAM, NEW DELHI. 2. THE STATE OF KERALA, REP. BY THE SECRETARY TO THE GOVERNMENT GENERAL ADMINISTRATION (PENSION DIVISION), SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI R2 BY ADV.SRI.V.K.MOHAMMED YOUSEF, ACGS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ WP(C).No. 165/2005(T) APPENDIX PETITIONERS EXHIBITS: P1: COPY OF THE ORDER DATED 08/04/1991 ISSUED BY THE ACCOUNTANT GENENRAL TO PETITIONER. P2: COPY OF APPLICATION DATED 03/12/1973 BY PETITIONER'S HUSBAND TO THE HOME MINISTER. P3: COPY OF REPRESENTATION DATED 01/03/2000 BY PETITIONER BEFORE THE 2ND RESPONDENT. P4: COPY OF LETTER NO.CF-5-46/2000 DATED 05/07/2000 BY SUPERINTENDENT OF CENTRAL PRISON, TVM TO PETITIONER. P5: COPY OF JUDGMENT IN O.P.NO.13115/1995 DATED 22/11/1996 OF THIS HON'BLE COURT. P6: COPY OF JUDGMENT IN O.P.NO.28531/00 DATED 19/06/2003 OF THIS HON'BLE COURT. P7: COPY OF REPRESENTATION DATED 20/08/2003 BY PETITIONER TO THE 2ND RESPONDENT. P8: COPY OF LETTER NO.77395/FFP/A2/2003/GAD DATED 30/10/2003 ISSUED BY THE 2ND RESPONDENT. P9: COPY OF LETTER NO.52/CC/KER/458/2000-FF(SZ)LIT.II DATED NOV. 2003 BY 1ST RESPONDENT. P10: COPOY OF JUDGMENT IN W.A.NO.1717/2000 DATED 26/09/2000 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs/ ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 165 of 2005 T ``````````````````````````````````````````````````````` Dated this the 16th day of November, 2010 J U D G M E N T Petitioner is the widow of late Sri. Mohammed Aboobacker Labba. Late Sri.Labba was a freedom fighter who actively participated in the freedom struggle in the erstwhile Travancore State. Ext.P1 order shows that he was a recipient of pension under the Kerala Freedom Fighters' Pension Scheme. Averments in the writ petition also show that recognising him as a freedom fighter, the Government of India awarded 'Thamra Pathra' to him. 2. During his life time, on 03-12-1973, Sri.Labba submitted Ext.P2 application for the grant of pension payable under the Swatantrata Sainik Samman Pension Scheme. The application was kept pending and meanwhile, Sri.Labba breathed his last on 11-09-1979. Petitioner, his wife, pursued the matter by filing various representations, one of which is Ext.P3. Eventually the claim made by Sri.Labba was rejected. W.P.(C) No.165/05 : 2 : That order of rejection was challenged before this Court in O.P.No.28531/2000. That Original Petition was disposed of by this Court as per Ext.P6 judgment. In Ext.P6 judgment, taking note of the submission that Sri.Labba was convicted to undergo imprisonment in connection with the freedom struggle for a period of six months and that the certificate that Sri.Labba had undergone actual imprisonment of only two months alone did not disqualify him, and that the case dealt with by this Court in W.A.1717/2000 was identical, this Court held that the order rejecting the claim made by Sri.Labba was unsustainable and directed that his claim shall be reconsidered by the Government of Kerala, on a representation to be filed by his wife in that behalf. Petitioner states that accordingly she submitted Ext.P7 representation. Pursuant to the directions of this Court in Ext.P6 judgment, based on the representation filed, the claim of the petitioner for pension was reconsidered and was rejected by Ext.P8 order passed by the third respondent. Based on Ext.P8, the W.P.(C) No.165/05 : 3 : Government of India passed Ext.P9, rejecting the claim of the petitioner on the ground that there was no positive recommendation of the State Government which, according to the first respondent, is a mandatory requirement for consideration of the claim for grant of pension. It is challenging Exts.P8 and P9 and also for a direction to the respondents to extend to the petitioner the benefit of SSSP Scheme, this writ petition is filed. 3. The first respondent has filed a counter affidavit contending mainly that in the absence of the mandatory positive recommendation from the second respondent, they are not in a position to grant the benefit of pension claimed by the petitioner. In the counter affidavit filed by the second respondent, the second respondent has accepted that the petitioner is a beneficiary of the State Pension and that the deceased was awarded 'Thamra Pathra'. However, the second respondent has stated that as per jail records, the petitioner's deceased husband had undergone imprisonment W.P.(C) No.165/05 : 4 : only for about two months, during the period from 27-01-1118 ME to 22-03-1118 ME. It is, therefore, contended that since the deceased did not undergo imprisonment for the minimum specified six months period, they were not in a position to recommend his case for pension under the Central Scheme. It is on this ground, the second respondent seeks to justify Ext.P8 order. 4. Learned senior counsel for the petitioner contended that the petitioner's deceased husband being a genuine freedom fighter, ought not have been denied the benefit of Central pension. According to the learned senior counsel, although the deceased was convicted and sentenced to imprisonment for a period of more than six months, he was released prematurely by extending the benefit of an amnesty scheme, which was not granted based on any apology tendered by him. It is stated in such circumstances, applying the principles laid down in the judgments in Pappu Kesavan Vs. Union of India [1996 (2) KLT 1035], Bhaurao Dagdu W.P.(C) No.165/05 : 5 : Paralkar Vs. State of Maharashtra and others [AIR 2005 (3) SC 3330] and Narayana Pillai Vs. State of Kerala [2009 (3) KLT 351], the petitioner's claim ought to have been accepted. 5. I heard the learned Government Pleader and the learned Standing Counsel appearing for the first respondent also, who reiterated their plea as contained in the counter affidavits filed. 6. It is an admitted fact that the deceased husband of the petitioner was recognised as a freedom fighter. He was also granted pension under the State Scheme evidenced by Ext.P1 order. It is also an admitted fact that recognising him as a freedom fighter, the deceased was awarded 'Thamra Pathra'. It is also undisputed fact that during the period from 27-01-1118 ME to 22-03-1118 ME, the deceased had undergone imprisonment in connection with the freedom struggle. Question is, despite the aforesaid facts, whether the claim of the petitioner for pension under the Central Scheme should have been negatived by the respondents. As already W.P.(C) No.165/05 : 6 : seen, it is the specific case of the petitioner that the deceased was convicted and sentenced to undergo imprisonment for more than six months. Although it is a fact that the petitioner has not produced documents evidencing that the conviction was for the period as claimed or to substantiate her plea that the deceased was released from imprisonment on account of an Amnesty scheme then implemented, Ext.P4 certificate issued by the Superintendent of the Central Prison, Thiruvananthapuram dated 05-07-2000 shows that though a certificate was issued to the petitioner's husband, certifying the imprisonment he had undergone, the Superintendent is presently not in a position to issue any certificate for the reason that the convict register for the relevant period has been received irrecoverably and, therefore, the genuineness of the documents cannot be verified. Therefore, it is a case where it is practically impossible for the petitioner to secure a fresh certificate from the jail authorities. 7. It is also the specific case of the petitioner that a W.P.(C) No.165/05 : 7 : person who had undergone along with the deceased and who was released along with him has already been granted Freedom Fighters' Pension, pursuant to the judgment of this Court in O.P.No.7068/1999 filed by the aforesaid person, viz., Sri.R.Sankar Warrier. It is seen from the aforesaid judgment that the Union of India had filed W.A.No.1717/2000 which was dismissed by the Division Bench of this Court as per Ext.P10 judgment rendered on 26-09-2000. In that judgment, dealing with facts, which are identical in nature, this Court has held as follows:- “ The Swatanthrata Sainik Samman Scheme for pension is promulgated with the intention of benefiting those who bonafidly participated in the freedom struggle. It was not in the expectation of those person that pension will be paid to them as they took part in the struggle. They took part in the freedom struggle on their own volition. They were imprisoned and they were behind the bars. The scheme directs that persons should have undergone imprisonment for 6 months. But as W.P.(C) No.165/05 : 8 : per the scheme those who were released prematurely will be also be entitled to pension provided the release was not on the basis of apology. The respondent has clearly stated that he was not released on the basis of apology. From Ext.P7 it is clear that the records are not available. In the light of the above facts, we uphold the judgment of the learned single judge. Two months time is granted from today to comply with the direction to pay pension to the petitioner in the OP.” 8. Therefore, if a person who had undergone imprisonment along with the petitioner's husband and released along with him has been extended pension pursuant to the directions in Ext.P10 judgment, I see no reason why a different treatment should have adopted by the respondents in the case of the deceased husband of the petitioner alone. Further this Court also held non availability of the certificate shall not be a ground to deny the benefit. 9. As rightly pointed out by the learned senior counsel W.P.(C) No.165/05 : 9 : for the petitioner, in various judgments including Pappu Kesavan Vs. Union of India [1996 (2) KLT 1035], Bhaurao Dagdu Paralkar Vs. State of Maharashtra and others [AIR 2005 (3) SC 3330] and Narayana Pillai Vs. State of Kerala [2009 (3) KLT 351], this Court and Apex Court has repeatedly highlighted the approach to be adopted in a case of this nature. It has been held that the freedom fighters should be treated with reverence and that genuine claims should be liberally considered. In my view, these principles are fully applicable in the case of the claim made by the petitioner and therefore, in the light of the material available, I am satisfied that the claim made by the petitioner deserves acceptance. 10. Reference was also invited to the judgment of this Court in OP.No.10501/1997 where a learned Judge of this Court had upheld a claim for pension relying mainly on the ‘Thamra Pathra’ awarded to the claimant therein. Here also, the deceased husband of the petitioner has been awarded ‘Thamra Pathra’. W.P.(C) No.165/05 : 10 : 11. Thus, on an over all consideration of the matter, I feel that the reasoning of the second respondent in Ext.P8 order, rejecting the application on the ground that the petitioner's deceased husband had undergone imprisonment only for two months and that his release was not on an apology is too technical to be upheld by this Court. I, therefore, quash Ext.P8 and consequently, Ext.P9 issued by the first respondent is also set aside. 12. There will be a declaration that the petitioner's deceased husband is entitled to get pension under the SSSP Scheme of the first respondent. It is directed that the first respondent shall disburse the benefits due under the scheme to the petitioner within two months of receipt of a copy of this judgment. Writ petition is disposed of as above. Sd/- (ANTONY DOMINIC, JUDGE) aks // True Copy // P.A. To Judge