IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 12TH DECEMBER 2008 / 21ST AGRAHAYANA 1930 WP(C).No. 31590 of 2005(I) ------------------------------------- PETITIONER(S): ---------------------- PANKAJAKSHY KARUNAKARAN, W/O.LATE C.R.KARUNAKARAN, CHENNIYEZHATHU VEEDU, ERAMALLOOR.P.O, CHERTHALA. ALAPPUZHA DIST. BY ADV. SRI.K.K.SATHEESH RESPONDENT(S): ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI-110 003. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL ADMINISTRATION (FFP.A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.V.T.K.MOHANAN FOR R2 ADV. SRI.VARGHESE J.PUNNACHALIL,ADDL.CGSC FOR R1 ADV. SRI.P.PARAMESWARAN NAIR,ASST SG FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 31590/2005-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS OF THE DISTRCIT COLLECTOR, ALAPPUZHA VIDE ORDER NO.R.DIS.7803/74/F6 DATED 26/02/1974. EXT.P2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER'S LATE HUSBAND DATED 18/05/1998. EXT.P3: COPY OF THE CERTIFICATE ISSUED BY THE SUPDT. OF CENTRAL PRISON, TRIVANDRUM DATED 11/08/1977 ALONGWITH COVERING LETTER NO.CP5-272/71. EXT.P4: COPY OF THE LETTER NO.119/2/GENL.98-FF.SZ DATED 29/07/1998 ISSUED BY THE 1ST RESPONDENT. EXT.P5: COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER DULY ATTESTED BY THE JUDICIAL IST CLASS MAGISTRATE-I, CHERTHALA DATED 26/05/1999. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No.31590/2005-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 12th day of December, 2008. J U D G M E N T The petitioner is seeking for a declaration that she is entitled to get Swatantrata Sainik Samman Pension due to her late husband. There is a further prayer to issue appropriate directions to the second respondent to forward the verification-cum-entitlement report to the Central Government. 2. She is the widow of Sri.C.R.Karunakaran, a freedom fighter who had actively participated in the Punnapra-Vayalar Freedom Movement. On account of his participation in the said struggle on 26/01/1124ME, he was convicted and sentenced to undergo simple imprisonment for six months by the First Class Magistrate, Cherthala in case No.C.C.38/1123 ME. Accordingly, he had undergone imprisonment in the Central Prison, Thiruvananthapuram for the period from 29/01/1124 to 25/07/1124 ME as convict No.9573. He was granted pension under the Kerala Freedom Fighters' Pension Scheme, which is produced as Ext.P1. He is also a recipient of Thamrapatra. Ext.P2 is the application of the late husband of the petitioner for grant of S.S.S.Pension, along with it, Ext.P3 a true copy of the certificate issued by the Superintendent of Central Prison, Thiruvananthapuram with details of imprisonment was also enclosed. By W.P.(C) No.31590/2005 -:2:- Ext.P4, she was informed by the Central Government that they were awaiting the verification report from the State Government. Petitioner's late husband expired on 08/03/1999. Subsequently, the petitioner submitted an affidavit duly attested by the Judicial First Class Magistrate-1, Cherthala to the District Collector, Alappuzha, which is produced as Ext.P5. 3. The respondents have filed separate counter affidavits. The first respondent has stated that the application of the petitioner's husband along with mandatory verification-cum-entitlement to pension report of the State Government has not been received so far. 4. In the counter affidavit filed by the State Government, paragraph (5) refers to the certificate produced by the late husband of the petitioner Ext.P3, which is a jail certificate. While referring to the jail certificate issued by the Superintendent, Central Prison, Thiruvananthapuram (Ext.P3) it is stated that usually the claim of imprisonment sufferings is supported by the extract of the convict register. The petitioner's husband had only produced a certificate. It is further stated that in the application for pension under the Kerala Freedom Fighters' Pension Scheme the late husband of the petitioner had claimed imprisonment for one year and eight months whereas the claim in the S.S.S.Pension application is different. It is therefore submitted that the genuineness of the claim is doubtful. W.P.(C) No.31590/2005 -:3:- 5. Clearly the said stand is incorrect for various reasons. The certificate Ext.P3 is primary evidence as required under the relevant scheme. The second respondent do not have a case that the Superintendent is not competent to certify the details of imprisonment of the person who was in jail after conviction. Ext.P3 clearly shows that the late husband of the petitioner was convict No.9573. He was an accused in C.C.No.38/1123ME on the file of the First Class Magistrate-I, Cherthala and he was convicted and sentenced to undergo six months imprisonment under Section 9(1)(a) and Section 2 Cl.6 of Act 1 of 122 on 26/01/1124 ME and he was released from prison on 25/07/1124 on expiry of sentence. Therefore, clearly there is six months imprisonment which entitles the petitioner to claim pension. Merely because of the fact that in respect of the claim under the Kerala Freedom Fighters' Pension, a longer term was shown, that cannot make the claim doubtful since there is primary evidence. The covering letter along with the certificate shows the details of sentence undergone by him. In the light of the said certificate, the second respondent ought not have taken a stand that there is doubt in regard to the genuineness of the claim. When there is primary evidence by way of such a certificate issued by a competent authority that cannot be discarded on flimsy reasons. Clearly when Ext.P3 certifies that he is imprisoned for six months in prison in connection with the crime mentioned therein, it cannot be said that the claim cannot be recommended to the Central Government. It is to be borne in W.P.(C) No.31590/2005 -:4:- mind that, he was granted State Pension and was a holder of Thamrapatra, which shows that he is a genuine freedom fighter. Therefore, the stand taken in the counter affidavit is too technical. The State Government ought to have recommended the application for S.S.S Pension. It is up to the Central Government to take a decision in the matter after considering all the materials. 6. Therefore, there will be a direction to the second respondent to forward to the first respondent the verification-cum-entitlement report recommending the application for S.S.S Pension along with other materials produced by the petitioner, within a period of six weeks from the date of receipt of the copy of this judgment. The first respondent will pass final orders within two months after the receipt of the said report from the State Government. In the event of sanction of pension, the entitlement of arrears from the date of Ext.P2, 18/05/1998, will also be considered by the first respondent. Going by Ext.P4 letter dated 29/07/1998 of the Central Government, they acknowledge receipt of the application for S.S.S. Pension. The original petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) ms