IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 WP(C).No. 15503 of 2007(U) --------------------------------------- PETITIONER: ------------------- C.M.KUTTAPPAN, CHELATHARA HOUSE, OLATHALA, VAYALAR, PATTANAKKAD P.O., CHERTHALA TALUK, ALAPPUZHA DT. BY ADV. SRI.K.K.SATHEESH. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVT., GENERAL ADMINISTRATION(FFP.B)DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ALAPPUZHA. R1 & R2 BY GOVERNMENT PLEADER SRI. P.K. RAVIKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15503/2007-U: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE R.2. DTD. 27/07/1981 ALONGWITH AN AFFIDAVIT DTD. 27/07/81. EXT.P.2: COPY OF THE PKC ISSUED BY SRI. P.K. SUKUMARAN @ KUNJAN SUKUMARAN DT. 30/04/1998. EXT.P.3: COPY OF THE PKC ISSUED BY SRI. P.K. SURENDRAN DTD. 19/07/2001. EXT.P.4: COPY OF THE PKC ISSUED BY SRI. E. VASUDEVAN DTD. 19/07/2001. EXT.P.5: COPY OF THE PKC ISSUED BY SRI. NARAYANAN RAMANKUTTY DT. NIL. EXT.P.6: COPY OF THE NARC FROM THE SUPDT. OF POLICE, ALAPPUZHA. EXT.P.7: COPY OF THE NARC FROM THE JUDICIAL IST CLASS MAGISTRATE COURT, CHERTHALA. EXT.P.8: COPY OF THE LETTER NO. 75378/FFP.B3/2000/GAD DT. 26/03/2002/3-5-2002 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.9: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.1. DTD. 16/07/2004. EXT.P.10: COPY OF THE PKC ISSUED BY SRI. H.K. CHAKRAPANI DTD. 18/02/2004. EXT.P.11: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN W.P.(C). NO.26194/04 DTD. 06/07/2006. EXT.P.12: COPY OF THE LETTER NO. 56406/FFP.B3/2006/GAD DTD. 19/10/2006 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.13: COPY OF THE LETTER NO 101624/FFP.B3/06/GAD DTD. 05/03/2007 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.14: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.1. DTD. 14/03/2007. EXT.P1.5: COPY OF THE LETTER NO. 63819/FFP.B3/GAD DTD. 30/10/2006 ISSUED BY THE R.1. TO SRI. P.K. CHELLAPPAN. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No.15503/2007-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 1st day of December, 2008. J U D G M E N T This is for the second time that the petitioner has approached this Court for grant of pension under the Kerala Freedom Fighters' Pension Scheme. Inspite of Ext.P11 judgment, the matter has not been considered in the light of the correct legal position. 2. The brief facts show that the claim is based on the participation in the Punnapra-Vayalar Movement. According to the petitioner, an arrest warrant was issued against him by the First Class Magistrate Court, Cherthala, in case No.P.E.10/1122 M.E. and in order to evade arrest, he had gone underground for a period of more than one year from 27/10/1946 to 30/10/1947. He had submitted an application for grant of Kerala Freedom Fighters' Pension on 27/07/1981 (Ext.P1), and to prove the same, he had also furnished a certificate issued by a prominent freedom fighter, Sri.C.G.Sadasivan, Ex-MLA. Later, he produced personal knowledge certificates from various certifiers, namely, Sri.Kunjan Sukumaran, Sri.P.K.Surendran, Sri.E.Vasudevan and Sri.Narayanan Ramankutty. The said personal knowledge certificates are produced as Exts.P2 to P5 here. Out of these competent certifiers, Sri.Kunjan Sukumaran and Sri.Narayanan W.P.(C) No.15503/2007 -:2:- Ramankutty were recipients of Swatantrata Sainik Samman Pension as well as holders of Thamrapatra. Exts.P6 and P7 are the non-availability of records certificates issued by the Superintendent of Police, Alappuzha and from the Judicial First Class Magistrate Court, Cherthala. Initially, he was informed by Ext.P8 that the certificate from Sri.P.K.Surendran was defective and, therefore, it was not acceptable and, hence, his application was not liable to be considered. Therefore, the petitioner along with Ext.P9 representation dated 16/07/2004, produced the personal knowledge certificate issued by Sri.H.K.Chakrapani (Ext.P10). He had also produced the relevant certificates relating to the said certifier. Since the first respondent was protracting the process of taking a decision in Ext.P9, petitioner filed W.P.(C) No.26194/2004 and, by Ext.P11 judgment this Court issued the following directions:- “3. In view of the fact that pursuant to Ext.P9, the petitioner has filed Exts.P10 to P13 documents, it is only just and proper that the first respondent considers and passes appropriate orders on the application of the petitioner. Accordingly, there would be a direction to the first respondent to consider and pass orders on the application of the petitioner taking into account Exts.P10 to P13 documents also, within a period of three months from the date of receipt of a copy of this judgment. If necessary, the first respondent shall place the petitioner's application before W.P.(C) No.15503/2007 -:3:- the District Advisory Committee for consideration of the same. The writ petition is disposed of as above.” 3. The reference therein to Exts.P10 to P13 relates to the personal knowledge certificate issued by Sri.H.K.Chakrapani along with certificates granting S.S.S Pension and the jail records relating to the said certifier. This Court was pleased to direct that the petitioner's application shall be placed before the District Advisory Committee if necessary. 4. But by Ext.P12 again the same was declined. A reading of Ext.P12 shows that the very approach made by the Government is not correct. His application is treated as one filed after 31/03/1994 to bring it within the mischief of Circular dated 31/12/1993. This is patently wrong. The representation dated 16/7/2004 can only be considered as a continuation of his application dated 27/07/1981. The other reason stated in Ext.P12 is that he had not produced any official documents as per the Kerala Freedom Fighters' Pension Rules. It is stated that his application was not placed before the District Advisory Committee. 5. In the counter affidavit filed by the State Government, the main reason stated in paragraph (8) is that apart from producing the personal knowledge certificate and the jail records of Sri.H.K.Chakrapani, the petitioner W.P.(C) No.15503/2007 -:4:- has not produced any documentary evidence based on official records and hence, his application was not placed before the District Advisory Committee. The very approach made by the respondent is faulty. In paragraph (7), it is stated that in view of the government circular dated 13/12/1993, any application received after 31/03/1994 will be considered only on production of documentary evidence from official records. Obviously, they have treated the representation dated 16/07/2004 as a fresh application. It is surprising as to how the application could have been rejected without going into the acceptability of the personal knowledge certificate issued by Sri.H.K.Chakrapani and in the light of the certificates of the said certifier and also especially when a positive direction was issued in Ext.P11 judgment. The approach is highly technical. The scheme allows the applicant to produce the personal knowledge certificate in the absence of any primary evidence. The provisions of a statute, rules, schemes etc. cannot be whittled down by the terms of a Circular. Here the circular itself is not applicable as his application is of the year 1981. The Apex Court in Gurdial Singh vs.Union of India [AIR 2001 SC 3883] has held that “the case of the claimants under this scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of 'beyond reasonable doubt'. Once on the basis of the W.P.(C) No.15503/2007 -:5:- evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence.” Therefore, a technical approach ought not have been taken by the authorities inspite of the positive direction issued by this Court. The reason for not placing it before the District Advisory Committee is totally untenable. It is upto the said committee to verify the certificates and find out whether the petitioner is an eligible freedom fighter. Since the very basis of the rejection is untenable, I quash Exts.P12 and P13. The application of the petitioner along with the certificates produced shall be placed before the District Advisory Committee within a period of one month from the date of receipt of a copy of this judgment. Based on the report of the District Advisory Committee, the application will be reconsidered appropriately. 6. One thing to be mentioned here is in respect of grant of pension as per Ext.P15 to another similarly placed freedom fighter, Sri.P.K.Chellappan. In the counter affidavit what is stated is that in the case of Sri.P.K.Chellappan, the District Advisory Committee had recommended the grant of Kerala Freedom Fighters' Pension along with the recommendation of the District Collector. Herein also it is clear that the application of Sri.P.K.Chellappan was W.P.(C) No.15503/2007 -:6:- reconsidered in the light of the judgment in W.P.(C).No.26694/2003. A reading of the said judgment shows that the petitioner Sri.P.K.Chellappan had filed a representation producing personal knowledge certificate from Sri.H.K.Chakrapani. Obviously, the said certificates were acted upon to grant pension to Sri.P.K.Chellappan by Ext.P15. Learned counsel for the petitioner contends that there is nothing that distinguishes the case of the petitioner herein from that of Sri.P.K.Chellappan. I find force in the said argument. It is obvious that the certificates of the same certifier have been accepted in that case. This aspect should also be borne in mind by the authorities concerned while re- examining the case of the petitioner herein. Final orders shall be passed within two months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms