IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 20090 of 2008(N) -------------------------------------- PETITIONER(S): --------------------- KARTHYAYANI JANAKI, AGED 68, NEDUVELI HOUSE, PATTANAKKAD P.O CHERTHALA. BY ADV. MR.J.OM PRAKASH RESPONDENT(S): ------------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, THIRUVANANTHAPURAM. R1 BY ADV. MR.P.PARAMESWARAN NAIR,ASST.SOLICITOR, MR.MATHEW K.PHILIP, C.G.C R2 BY GOVERNMENT PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 20090/2008-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE EXTRACT OF THE REGISTER OF UNDER TRIAL PRISIONERS, RELATING TO SRI.KUTTY KUMARAN, ISSUED BY THE SUPERINTENDANT CENTRAL PRISON, TRIVANDRUM DATED NIL. EXT.P2: COPY OF THE CERTIFICATE ISSUED BY THE SPERINTENDANT, SPECIAL ALAPPUZHA DATED 17/08/2001. EXT.P3: COPY OF THE ORDER PASSED BY THE DISTRICT COLLECTOR, ALAPPUZHA DATD 10/05/1972. EXT.P4: COPY OF THE CO-PRISONER CERTIFICATE ISSUED BY SRI.P.A.SOLOMON EX. M.P. DATED 21/03/2005. EXT.P5: COPY OF THE LETTER OF THE DISTRICT COLLECTOR, ALAPPUZHA RELATING TO THAMRAPATHRA DATED 04/08/1973. EXT.P6: COPY OF THE COPY APPLICATION AND ORDER IN P.E.8/123 OF THE C.J.M. COURT, ALAPPUZHA. EXT.P7: COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 07/02/2006. EXT.P8: COPY OF THE ORDER OF THE UNDER SECRETARY TO GOVERNEMNT OF INDI DATED 17/05/2006. EXT.P9: COPY OF THE REPORT OF THE TAHSILDAR, CHERTHALA DATED NIL. EXT.P10: COPY OF THE JUDGMENT IN W.P.(C). NO. 5967/2006 DATED 24/08/2007. EXT.P11: COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 05/12/2007. EXT.P12: COPY OF THE ORDER OF THE UNDER SECRETRY TO GOVERNMENT OF INDIA DATED 26/05/2008. EXT.P13: COPY OF THE REPORT OF THE TAHASILDAR, CHERTHALA ALONG WITH THE ENDORSEMENTS OF THE DISTRICT COLLECTOR DATED 10/05/1972. EXT.P14: COPY OF THE LETTER OF DISRICT COLLECTOR, ALAPPUZHA DATED 21/10/2008. RESPONDENT'S EXHIBITS: EXT.R1: COPY OF THE SALIENT FEATURES OF SWATHANTHRA SAINIK SAMMAN PENSION SCHEME 1980. //TRUE COPY// P.A. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).20090/2008 -------------------- Dated this the 31st day of March, 2009 JUDGMENT Petitioner claims that her husband, Kutty Kumaran, was a freedom fighter who had participated in the Punnapra-Vayalar Struggle, which is now treated as part of the freedom struggle for the purpose of Swatantrata Sainik Samman Pension Scheme (hereinafter referred to as the Central Scheme). Clause 4 of the Scheme deals with who are eligible for the grant of Central Pension. The same reads as follows:- Who is Eligible ? For the purpose of grant of samman pension under the Scheme, a freedom fighter is :- (a). A person who had suffered a minimum imprisonment of six months in the mainland jails before independence on account. However, ex-INA personnel will be eligible for pension if the imprisonment/detention suffered by them was outside India. W.P.(C).20090/2008 2 (b). The minimum period of actual imprisonment for eligibility of pension has been reduced to three months, in case of women and SC/ST freedom fighters from 1.8.1980 2. Clause 9 deals with the manner in which the claims are to be proved. The same reads as follows:- HOW TO PROVE THE CLAIMS (EVIDENCE REQUIRED) The applicant should furnish the documents indicated below whichever is applicable:- (a).IMPRISONMENT/DETENTION ETC. Certificate from othe concerned jail authorities, District Magistrate or the State Government in case of non- availability of such certificates co- prisoner certificates from a sitting M.P. or M.L.A. or and ex-M.P. or ex.M.L.A specifying the jail period (Annexure-I in the application form) (b).REMAINED UNDERGROUND (i).Documentary evidence by way of Court's/Government orders proclaiming W.P.(C).20090/2008 3 the applicant as an offender, announcing an award on his head, or for his arrest or ordering his detention. (ii).Certificates from veteran freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not forthcoming due to their non-availability. (c).INTERNMENT OR EXTERNMENT (i).Order of internment or externment or any other corroboratory documentary evidence. (ii).Certificates from prominent freedom fighters who had themselves undergone imprisonment for five years or more if the official records are not available. 3. In the present case it is the claim of the petitioner that Kuutty Kumaran was an accused in a Sessions Case as P.E.8/1123 of the Special Magistrate, Alappuzha, which was ultimately tried by the Additional Sessions Judge, Thiruvananthapuram. Ext.P1 extract of the register of under trial prisoners maintained in the Central Prison shows that Kutty Kumaran was admitted to W.P.(C).20090/2008 4 the Central Prison at Thiruvananthapuram on 27th of Vrichikom 1123, and he was set at liberty on 19.8.1123. The authenticity of the details as shown in Ext.P1 has been dealt with in paragraph 8(1) of the counter affidavit by the first respondent which reads as follows: The copy of extract of register of under trial prisoners of Central Prison is not verified by the State Government. Hence the same cannot be relied upon. Moreover, as per the said piece of document, even if it is relied upon, the period of jail suffering of the late husband of the petitioner comes equal to 3 months and 22 days (from 27.4.1123 ME - 19.8.1123 ME or equivalently, 11.12.1947 AD - 3.4.1948 AD.). Thus the period of jail suffering as claimed by the petitioner is less than six months, the minimum period required to consider the claim for grant of pension under the Scheme. Therefore, the petitioner is not eligible for grant of pension under the Scheme. W.P.(C).20090/2008 5 4. Going by the counter affidavit, Kutty Kumaran had suffered imprisonment in the central Prison during the period from 27.4.1123 ME to 19.8.1123 ME or equivalently, 11.12.1947 AD - 3.4.1948 AD. According to the petitioner, the imprisonment suffered by Kutty Kumaran in the Central Prison, Thiruvananthapuram, was in continuation of the under trial imprisonment suffered by him, while he was lodged at the Sub Jail, Aleppey. There is no direct evidence regarding the imprisonment suffered by Kutty Kumaran in the Sub Jail, Aleppey and in these circumstances, consequential evidence, which is also contemplated under the Scheme, was sought to be provided by means of a certificate issued by a co-prisoner one P.A.Solomon, Ex.M.P. Ext.P4 is the certificate issued by the Ex.M.P. and he certified that Kutty Kumaran was a bonafide freedom fighter and he was also lodged in the same jail as P.A.Solomon during the period from February, 1947 to November, 1947 in case No.P.E.8/1123 and that in November 1947, he was transferred to the Central prison, W.P.(C).20090/2008 6 Thiruvananthapuram. If what is stated in Ext.P4 is correct, then period of imprisonment suffered by Kutty Kumaran, either by itself or taken along with the period of imprisonment suffered at the Central prison, Thiruvananthapuram as certified under Ext.P1, would be more than the mandatory minimum period of six months' imprisonment required in terms of the Scheme. 5. Ext.P4 was considered by the State Government, and Kutty Kumaran was sanctioned State Government pension. Apparently, a report given by the Tahsildar, as evidenced by Ext.P9, had also been taken into account by the State Government, by granting State pension. Exts.P1, P4 and P9 were again taken into account by the State Government. They reconsidered the petitioner’s case pursuant to a direction issued by this Court in Ext.P10 and there was a positive recommendation on behalf of Kutty Kumaran by the State Government, as evidenced by Ext.P11. W.P.(C).20090/2008 7 6. Nevertheless, the Central Government, the competent authority, rejected the claim of the petitioner by Ext.P12 which has been challenged in this writ petition. 7. Two reasons have been given by the Central Government in Ext.P12 to reject the claim of the petitioner. Firstly it is contended that Ext.P1 extract of register of the under trial prisoners is not verified by the State Government. This contention has been expressly given up in the counter affidavit. Secondly, it is contended that the report of P.A.Solomon, has not been accepted. It has not been accepted because there is no proper Non Availability of Records certificate (NARC), in terms of the Scheme, which alone will enable the applicant to rely on a co-prisoner's certificate. It is contended that an NARC has not been issued by a competent authority of the State Government. 8. The co-prisoner's certificate issued by P.A.Solomon has not been accepted for yet another W.P.(C).20090/2008 8 reason. It seems that Solomon, though was acknowledged as a freedom fighter, did not suffer imprisonment for a minimum period of one year and that in a report send to the Government of India, the authenticity of the certificate issued by him has been doubted. 9. Learned counsel for the petitioner submits that the requirement of a minimum period of one year imprisonment by a certifier of a co-prisoner’s certificate is not supported by the scheme. He relied on the judgment of a learned single Judge in Writ Petition No.25650/2005 in this regard. It is held therein that the scheme does not insist that only a person who has suffered a minimum imprisonment of one year is competent to issue a co-prisoner’s certificate. If that be so, co-prisoner’s certificate by Solomon cannot be rejected on the said ground. 10. The second aspect relates to the Non Availability of Record Certificate. According to the respondent, NARC issued in the present case is W.P.(C).20090/2008 9 not in the proper form. In my view, if the State Government has accepted the co-prisoner’s certificate issued by P.A.Solomon, then the State Government shall ensure that it gives a proper Non Availability of Record Certificate, after due verification in that regard. Once the said objection is removed, then there would be nothing which would otherwise stand in the way of the Central Government considering and accepting the recommendation of the State Government. In these circumstances, the State Government shall consider the issuance of Non Availability of Record Certificate in relation to the petitioner’s application and if satisfied that the records relating to the period of imprisonment undergone by the petitioner’s husband, Kutty Kumaran, in connection with PE 8/1123 of the Special Magistrate, Alappuzha, in the sub jail, Alappuzha are not available, then the NARC in the proper form as contemplated by the scheme shall be issued. This shall be done within three months from the date of receipt of a copy of this judgment. If a certificate in W.P.(C).20090/2008 10 that regard is issued, then the co-prisoner's certificate issued by P.A.Solomon will have to be found as acceptable by the Central Government. Consequently, the same along with the Non Availability of Record Certificate, if any, issued by the State Government, shall be reconsidered by the Central Government and an order be passed in that regard, within a period of three months from the date of receipt of the recommendation from the State Government, pursuant to the present judgment. Ext.P12 shall be quashed to the said extent. Writ petition is disposed of as above. V.GIRI, Judge mrcs