IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 24786 of 2006(A) -------------------------- PETITIONER(S): --------------- KALYANI AMMA, W/O.LATE C.K.NARAYANAN NAMBIAR, CHALIYA VEETTIL, MALAPPATTAM AMSOM DESOM, MALAPPATTAM POST, THALIPARAMBA TALUK, KANNUR. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE SECRETARY TO GOVENMENT, MINISTRY OF HOME AFFAIRS, NEW DELHI. 3. THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, GENERAL ADMINISTRATION (FFP.B) DEPARTMENT, THIRUVANANTHAPURAM. ADV. SRI. AJITH KRISHNAN, ADDL.CGSC FOR R1,2 GOVT.PLEADER SRI.THOMAS JOHN AMBOOKKEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1: True extract of the conviction register maintained by the Superintendent , Central Jail, Kannur Ext.P2: True copy of the Order No.R.Dis.16448/75 dated 29.04.1975 passed by the State Government. Ext.P3: True copy of the proceeding No.6/1/97-FF (p) dated 20/01/1998 issued by the Government of India. Ext.P4: True copy of the communication dated 31.12.2003 forwarded by the 1st respondent to the 2nd respondent. Ext.P5: True copy of the Order No. 52/CC/K/141 2005-FF9SZ) dated 26.06.2006 issued by the Central Government. //True copy// 30.01.2009 es HARUN-UL-RASHID, J. ---------------------------------------- W.P.(C) No.24786 of 2006 ---------------------------------------- Dated this the 30th day of January , 2009 JUDGMENT The petitioner is the widow of late Sri.C.K. Narayanan Nambiar. Sri.C.K. Narayanan Nambiar was a freedom fighter who had participated in the Kavumbhai struggle. It is averred by the petitioner that her husband was arrested and remanded to jail on 13.5.1947. The Criminal case was registered as C.C. 7/47, and C.C 16/47 on the file of the special 1st class Magistrate Tellicherry, the 2nd Class Magistrate Taliparamba respectively He was convicted to undergo rigorous imprisonment for a total period of one year in the said cases. After independence the petitioner's husband was released on 25.8.1950 after undergoing the imprisonment Ext.P1 is the conviction register maintained by the Superintendent of Jail Kannur 2. Ext.P1 shows that the petitioner's husband's detention in the prison commenced on 13.5.1947 and that he was convicted for a period of one year for the commission of different offences Ext.P2 is the order of sanction of State pension to the late husband of the petitioner finding that he was a freedom fighter entitled to State Pension. 3. By Ext.P3 order, the Central Government recognized the Kavumbhai Struggle as part of freedom struggle Hence the petitioner's husband applied for pension under the SSS Pension scheme on W.P.(C) No. 24786 of 2006 -2- 3.4.1998 . The petitioner's husband also produced the extract of the under trial register, convict register duly certified by the Superintendent of Central Jail Kannur and the document relating to the Tamrapatra award before the authorities. The State of Kerala on a perusal and consideration of all the relevant documents recommended the case for grant of SSS Pension . Subsequently the petitioner's husband has passed away. 4. The State Government has filed their counter-affidavit. The State Government by Ext.P4 order dated 31.12.2003,informed the Central Government that the District Collector and District Advisory Committee after examining the records , approved the same, that the petitioner's case can be recommended for SSS Pension scheme. But the 1st respondent rejected the application by Ext.P5 order stating reasons which are set out in paragraph 5 therein. 5. The prayer in this writ petition is to quash Ext.P5 order passed by the Central Government. By Ext.P5 order, in paragraph 5 , the claim of the petitioner is dismissed stating that there is no acceptable record-based primary evidence duly verified by the State Government in support of the petitioner's husband's claimed suffering. The Central Government also stated that there is no valid non-availability of records certificate and the two co-prisoner certificates as per the scheme are not attached. Another reason stated by the Central Government is that the award of Tamrapatra is not a consideration or acceptable evidence under W.P.(C) No. 24786 of 2006 -3- the provisions of the S.S.S. Pension Scheme. The State Government also pointed out the defect i.e the jail superintendent's admission to the effect that the genuineness of the undertrial register cannot be verified as the same was destroyed. 6. It is true that the petitioner's husband had participated in the Kavumbhai Struggle and the participants or their dependents are receiving pension under Kerala Freedom fighters pension scheme. Going by Ext.P1 the 1st petitioner's husband was admitted in the jail on 13.05.1947 and convicted for rigorous imprisonement. In the light of the materials on record, it is clear that the petitioner's husband had undergone imprisonment for more than one year. There is no necessity for any supporting documents to prove the petitioner's husband's detention in prison is in relation with the Kavumbhai struggle. 7. When the decision of a statutory administrative authority is tainted by non- application of mind and by errors apparent on the face of the records, this Court will be justified in interfering with the same. The Supreme Court also reminded the authorities in Gurdial Singh Vs. Union of India and others 2001 (8) SCC 8 that since the object of the scheme is to honour and to mitigate the sufferings of the freedom fighters, a liberal and not a technical approach should be adopted and hence a claim under the Scheme should be determined on the basis of probabilities and not by applying the test of” beyond reasonable doubt” This Court in Augusthy Mathai Vs.Union of India 2008(1) KHC 977 held that “decision of a W.P.(C) No. 24786 of 2006 -4- statutory administrative authority tainted by non-application of mind and by error apparent on the face of records is amenable to judicial review”..Hence I have no hesitation to declare that the petitioner's husband is entitled to pension under the SSS Pension Scheme 8. In the result , Ext.P5 order is set aside There will also be a direction to the 1st respondent to sanction and disburse the Swatantrata Sainik Samman Pension with arrears to the petitioner from the date of submission of the application within one month from the date of receipt of a copy of this judgment. I have also heard the submissions of the counsel for the Central Government. This writ petition is allowed with costs to the petitioner to the tune of Rs. 5,000/-. (HARUN-UL-RASHID, JUDGE) es. The judgment dated 30.01.2009 in W.P.(C) No. 24786/2006, the date “13.05.1947” occurring in the 4th line of first paragraph, 2nd line of 2nd paragraph and 4th line of 6th paragraph is corrected as “02.02.1947” and the date “25.08.1950” occurring in the 9th line of 1st paragraph is corrected as “25.08.1947”, as per order dated 18.06.2009 in I.A. No. 7371/2009 sd/- Registrar(Judicial) HARUN-UL-RASHID, J. --------------------------- W.P.(C) No. 24786 of 2006 ---------------------------- JUDGMENT 4th February , 2009