IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 WP(C).No. 1976 of 2008(I) ------------------------------------ PETITIONER(S): ----------------------- KUMARI MAGDALETH, D/O.LATE SILVESTER ALBERT, VATTATHIL VEEDU, VADACKAL, PUNNAPRA P.O., ALAPPUZHA DT. BY ADV. SRI.K.K.SATHISH RESPONDENT(S): -------------------------- 1. UNION OF INDIA REPRESENTED BY THE UNDER SECRETARY, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTERS' DIVISION, LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI-110 003. 2. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, GENERAL ADMINISTRATION (FFP. A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY ADV. SRI.A.D.RAVENDRA PRASAD, CGC SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI R2 BY GOVERNMENT PLEADER SRI. DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO. 1976/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT DATED 9/12/1949 OF THE HON'BLE SESSIONS COURT, ALLEPPEY IN S.C.NO.11/1124 ME. P2 COPY OF THE EXTRACT OF THE CONVICT REGISTER OF CENTRAL PRISON, TRIVANDRUM ISSUED BY THE SUP DT. P3 COPY OF THE DISABILITY CERTIFICATE NO.186/2000 ISSUED BY THE MEDICAL COLLEGE HOSPITAL, ALAPPUHZHA DT. 29/12/2000. P4 COPY OF THE APPLICATION DATED 20/10/98 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS. P5 COPY OF THE AFFIDAVIT DULY ATTESTED BY THE JFCM, ALAPPUHZHA DT. 20/12/05. P6 COPY OF THE JUDGMENT DT.10/7/2006 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.33635/2004. P7 COPY OF THE LETTER DT.27/10/2006 ISSUED BY THE DISTRICT COLLECTOR, ALAPPUHZHA. P8 COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE DISTRICT COLLECTOR, ALAPPUHZHA DATED 7/11/2006. P9 COPY OF THE COMMUNICATION NO.52/CC/K/7/2005-FF (SZ) DT.29/11/2007 ISSUED BY THE RESPONDENTS. P10 COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 21/12/2007. P11 COPY OF THE LETTER NO.104120/FFP A2/2001/GAD DT. 29/9/2003 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. P12 COPY OF THE JUDGMENT DATED 10/8/2007 PASSED BY THIS HON'BLE COURT IN WP(C) NO.31360/2006. P13 COPY OF THE ORDER NO.52/CC/K/125/2006-FF(SZ) DT. 7/8/2008 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J. ------------------------- W.P (C) No.1976 of 2008 -------------------------- Dated this the 5th January, 2011 J U D G M E N T Challenge in the writ petition is against Ext.P9, the order passed by the Government of India, rejecting the application made by the petitioner for pension under the Swatantrata Sainik Samman Pension Scheme 1980 ('SSS scheme' for short). Petitioner states that she is the unmarried daughter of late Silvester Albert, a freedom fighter. It is stated that Ext.P1 is the judgment in Sessions Case No. 11 of 1124 on the file of the Sessions Court of Alleppey arising out P.E 5 of 1122 of the Division First Class Magistrate's Court, Alleppey. Petitioner submits that her father was the second accused and that by this judgment he was convicted and sentenced to undergo imprisonment for a period of three years. Ext.P2 is stated to be the extract of Convict Register which also shows that the petitioner's father convicted as per Ext.P1 judgment. Apart from that, it is also seen that he had suffered conviction as per the judgment in SC 5/123. However, the judgment in SC No.5/123 is not available on W.P (C) No.1976 of 2008 2 record to know the nature of the case which led to his conviction and the petitioner is also not relying on the same. 2. After the death of petitioner's father, she submitted Ext.P4 application dated 20.10.1998 claiming dependent pension under the SSS scheme. Long thereafter, the District Collector issued Ext.P7 letter to her on 27.10.2006 informing that for want of documents, her application was rejected and that to consider her case afresh, further documents mentioned therein should be produced. Petitioner submits that in pursuance to Ext.P7, along with Ext.P8 letter, Exts.P1 and P2 were produced. It is stated that in spite of such documents, the State did not recommend her application, as a result of which, the Government of India, issued Ext.P9 order rejecting her application. It is challenging Ext.P9 order, the writ petition is filed. 3. The main contention raised by the learned counsel for the petitioner is that her request was rejected by Ext.P9 order, mainly on the ground that the petitioner W.P (C) No.1976 of 2008 3 had only produced unverified copy of the extract of Convict Register and court proceedings. It is stated that these and other reasons mentioned in Ext.P9 are totally illegal and according to the petitioner the conviction and imprisonment suffered by her father were evident from Exts.P1 and P2. 4. Learned counsel for the petitioner also refers to Exts.P11 and P12. It is stated that the dependent wife of accused No.27 in Ext.P1 was granted pension by Ext.P11. It is also stated that as per Ext.P12 judgment, this Court has already upheld the claim of another dependent of a person who was also convicted by Ext.P1 itself. 5. It is also contended that when the claim made by the dependent of the 1st accused in Ext.P1 was rejected, that was challenged before this Court. Learned counsel for the petitioner submits that as per Ext.P12 judgment, on the basis that the subject matter of Ext.P1 judgment was a part of freedom movement, this Court directed pension be granted to the claimant. It is stated that based on Ext.P12 judgment, benefits were granted as per Ext.P13. It is W.P (C) No.1976 of 2008 4 submitted that despite all these, her claim was rejected by Ext.P9 order which is illegal. 6. I have heard the learned Government Pleader appearing for the 2nd respondent also. 7. The primary contention raised by the learned Government Pleader is that the incident which led to the conviction of the petitioner and others as per Ext.P1 judgment cannot be taken as part of the freedom movement. It is stated that therefore the refusal of the State Government to recommend the claim of the petitioner does not call for any interference. Although the learned Government Pleader accepts that the dependent of the 1st accused in Ext.P1 was granted pension pursuant to the directions of this Court in Ext.P12 judgment, it is submitted the fact that Ext.P1 judgment did not arise out of freedom struggle was neither brought to the notice of this Court nor taken note of while deciding that petition. It is on this basis, the learned Government Pleader seeks to justify their stand. W.P (C) No.1976 of 2008 5 8. Therefore, the first issue that requires to be decided in this writ petition is whether the incident which led to the conviction of the petitioner's father as per Ext.P1 judgment arose out of the Punnapra -Vayalar freedom struggle as claimed by the petitioner. This factual question can be answered only with reference to the findings in the judgment itself and no other documents are relied on by the petitioner. The prosecution case as recorded in the judgment shows that the incident which was the subject matter of the case occurred on 31.02.1122 (ME). It is stated that some time before the occurrence a new trade union called Matsya Thozhilali Union, was formed among the fisher folk at Punnapra. It is stated that members of the said union were of Communist persuasion and that their activities prompted those who were not in sympathy with their ideals, to form a separate organisation which came into existence under the name and style 'Coastal Workers Union". The formation of the new organisation was not to the liking of the members of the Matsya Thozhilali Union and the feeling became W.P (C) No.1976 of 2008 6 embittered and antagonism quickly developed between the members of the two organisations. It is this conflict between the members of these trade unions which led to the incident that happened between 3.30 and 5.30 p.m. on 31.2.1122 (ME) which led to the registration of P.E 5/1122 of the Division First Class Magistrate's Court, Alleppey. In that case petitioner's father was the second accused and the judgment shows that he was convicted for various charges of assault, house breaking, arson, damage to property etc. 9. The above facts as disclosed from Ext.P1 judgment, in no manner indicate that the incident on 31.2.1122 had anything to do with freedom struggle or Punnapra-Vayalar Struggle which was a revolt against the erstwhile Rulers of Travancore State and the incident was on 11.3.1122 (ME). On the other hand, the subject matter of Ext.P1 was a pure inter-union rivalry, which resulted in offences such as assault, arson etc. Therefore, in my view, the learned Government Pleader is fully justified in contending that the incident of Ext.P1 could not have been W.P (C) No.1976 of 2008 7 taken as part of freedom struggle to justify the claim for pension under the SSS Scheme of the Government of India. If that be so, refusal of the State to recommend the case of the petitioner does not call for any interference. 10. It is true that Exts.P11 and P12 show that dependents and certain other persons who are involved in Ext.P1 were granted pensionary benefits . But however, having regard to the plain fact that the subject matter of Ext.P1 had nothing to do with freedom struggle in this State, even if it is a fact that pension has been granted erroneously to others, I am not persuaded to think that I should also repeat the error and interfere with Ext.P9. As far as Ext.P12 judgment is concerned, as rightly pointed out by the learned Government Pleader, no reference is seen made to the details of the incident which is the subject matter of Ext.P1 judgment and therefore the learned Government Pleader is right in contending that in Ext.P12, the fact that Ext.P1 had nothing to do with freedom struggle was not pointed out or not raised. W.P (C) No.1976 of 2008 8 11. In that view of the matter, I am not persuaded to grant any reliefs to the petitioner. Writ petition fails and it is accordingly dismissed. ANTONY DOMINIC JUDGE ma W.P (C) No.1976 of 2008 9