Kerala High Court
Union Of India vs Puthussery Vallyaveettil Thambayi ... on 2 June, 2011
Author: C.N.Ramachandran Nair
Bench: C.N.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934
W.A.No.1910 of 2011
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AGAINST THE JUDGMENT IN W.P.(C).36896/2010 DATED 02-06-2011.
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APPELLANT(S)/RESPONDENT(S):-
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1. UNION OF INDIA,
REP. BY ITS SECRETARY TO GOVERNMENT,
MINISTRY OF HOME AFFAIRS, FFR DIVISION,
LOK NAYAK BHAVAN, KHAN MARKET,
NEW DELHI - 110 003.
2. THE DEPUTY SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS, FFR DIVISION,
LOK NAYAK BHAVAN, KHAN MARKET,
NEW DELHI - 110 003.
BY CENTRAL GOVERNMENT COUNSEL SRI.S.KRISHNAMOORTHY.
RESPONDENT(S)/PETITIONER:-
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1. PUTHUSSERY VALLYAVEETTIL THAMBAYI AMMA,
W/O.ANDOOR KUNHAMBU NAMBIAR,
PUTHUSSERY VALLYA VEETTIL HOUSE,
ERUVESSY P.O., VIA. CHEMBERI, KANNUR DISTRICT,
PIN - 670 632.
ADDITIONAL 2ND RESPONDENT IMPLEADED:
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ADDL.R2. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL ADMINISTRATIOON (FFPA) DEPARTMENT,
THIRUVANANTHAPURAM.
(ADDITIONAL 2ND RESPONDENT IS IMPLEADED AS PER ORDER
DATED 8.2.2012 IN WRIT APPEAL).
R1 BY ADV. SMT.K.R.KRISHNAKUMARI
R2 BY GOVERNMENT PLEADER SRI.GEORGE MECHERIL.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
29.03.2012, THE COURT ON 10-04-2012 DELIVERED THE FOLLOWING:-
C.N.Ramachandran Nair &
K.Vinod Chandran, JJ.
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W.A.No.1910 of 2011
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Dated this, the 10th day of April, 2012
JUDGMENT
K.Vinod Chandran,J.:
The appellant, Union of India, challenges the judgment of the learned Single Judge directing disbursement of family pension under the "Swatantrata Sainik Samman Pension Scheme" (hereinafter referred to as 'SSS Pension Scheme') to the 1st respondent/writ petitioner with effect from the date of receipt of application. The Union of India has conceded to the position that the 1st respondent is eligible to family pension under the SSS Pension Scheme as declared by Exhibit P4 judgment of this Court. The dispute centres around the date of receipt of application.
2. The Union of India in the above writ appeal contends that the 1st respondent's claim was considered by them only after receipt of recommendation from the State Government. Considering the delay involved after the judgment was passed in the earlier writ petition, the appellants had sanctioned the family pension with effect from 9.3.2010, i.e., the date of the above mentioned judgment. It is the specific case of the appellants that as per the records of the appellants/Ministry, the W.A.No.1910 of 2011 - 2 - pension application of the 1st respondent had not been received through the State Government along with the verification report prior to the filing of the writ petition or thereafter. The pension was sanctioned in obedience to Exhibit P4 judgment on the recommendation received from the Government, is the stand of the appellant.
3. The 1st respondent, however, would contend that Exhibit P2 application was sent on 29.4.1998, as is evidenced by the postal receipts produced as Exhibit P8 along with Exhibit P3 reply affidavit filed in the earlier writ petition. The 1st respondent's counsel strenuously urged the claim of retrospective entitlement to family pension with effect from the date of application, i.e., from the year 1998, inter alia placing reliance on the judgment passed in a similar writ petition, bearing WP (C).No.33068 of 2009.
4. The brief facts leading to the instant appeal is that the 1st respondent's husband was a freedom fighter, who participated in the 'Kavumbai Movement' and had undergone imprisonment for a total period of one year and 7 months at Central Jail, Kannur and Central Prison, Vellore. The 1st respondent's husband had applied for Freedom Fighters' Pension under the Kerala Freedom Fighters Pension Scheme of the State Government and had been granted the same, but only after W.A.No.1910 of 2011 - 3 - his demise. The District Collector sanctioned the payment of pension to both the widows of late Andoor Kunhambu Nambiar and after the death of Devaki Amma, one of the widows, the entire pension had been sanctioned to be paid to the 1st respondent herein.
5. Even at that point of time, there was in existence a Freedom Fighters' Pension Scheme of 1972, which was declared during the 25th Anniversary of Independence. The said scheme was subsequently extended in the scope of its application and was named as "Swatantrata Sainik Samman Pension Scheme, 1980", produced as Exhibit P1. The Kavumbai Movement was recognized by the Government of India for the purpose of grant of SSS Pension under the said Scheme by letter dated 20.1.1998. It is the case of the 1st respondent that she had applied for the said pension as per Exhibit P2 and that the same was sent by "registered post with acknowledgment due" to both the Deputy Secretary, Government of India, Ministry of Home Affairs as also the District Collector, Kannur, evidenced by the postal receipts referred to above. Nothing transpired in the application sent in 1998 and hence, in the year 2009, she approached this Court by W.P.(C).No.33069 of 2009 claiming consideration of her application. One another similarly placed person, also a widow, also approached W.A.No.1910 of 2011 - 4 - this Court for the very same reliefs by filing W.P.(C).No.33068 of 2009. W.P.(C).No.33068 of 2009 was disposed of on 8.3.2010 directing the respondents therein to extend the benefit of the SSS Pension Scheme from the date of receipt of the application in that case. W.P.(C). No.33069 of 2009 filed by the 1st respondent was disposed of by judgment dated 9.3.2010 directing that if no recommendation is made, the State Government shall make necessary recommendations in the light of the Pension Scheme and also directed expeditious disposal of the same. The 1st respondent was granted pension in compliance with the said judgment, however, from the date of judgment, while the petitioner in the other case was granted pension from the date of application. This, according to the 1st respondent, is gross discrimination.
6. The 1st respondent herein asserts her entitlement to be treated at par with the petitioner in W.P.(C).No.33068 of 2009 and claims that in any event, she cannot be found fault with for the delay since she had applied in the year 1998 and she is entitled to be granted pension from that date. We propose to deal with the contention that she is similarly placed as the petitioner in the other case first. We have perused the Judge's papers in the other case. The Judge's papers W.A.No.1910 of 2011 - 5 - reveal that the application filed by the petitioner in that case was one solemnly affirmed at Taliparamba in April 1998 before the Judicial First Class Magistrate and that the Government of India had responded to the same by two letters dated 17.9.1998 and 13.9.1999. It was the communication dated 13.9.1999 directing further verification by the State Government about the genuineness of the documents submitted along with the application; that was challenged in the writ petition. A learned Single Judge of this Court in that case held; by judgment dated 8.3.2010 that when the State Government recommends the name of the applicant after a detailed enquiry, the Central Government ought not to have insisted on further proof and the same reveals a hyper technical approach. Finding such an approach to be unwarranted, the learned Single Judge specifically directed the extension of the benefit of the scheme with effect from the date of receipt of the application.
7. In the instant case, we are to reckon with an application (Exhibit P2) which is not complete in the sense that the copy does not show an affirmation before the Judicial Magistrate of the First Class. True, two postal receipts have been produced by the 1st respondent even in the earlier writ petition and also in the present writ petition. However, the date is not clearly discernible even from the original, W.A.No.1910 of 2011 - 6 - which was handed over to us across the Bar, by the counsel for the 1st respondent. In this context it is to be noticed that having been granted the family pension from the date of Exhibit P4 judgment, the 1st respondent had filed a contempt case on the premise that Exhibit P4 directed grant of family pension from the date of application. However, the said contention was rejected by Exhibit P7 judgment in Cont.Case (C).No.1323 of 2010 dated 9.11.2010, wherein the very same learned Single Judge held that the respondents were only directed to pass orders on the application and there is no direction to pass order effective from any particular date. Hence, the contempt case was closed, reserving liberty to the petitioner to challenge the same by appropriate proceedings. In such circumstances, the contention of the 1st respondent that the Central Government did not have a case in the earlier round of litigation that there was no application cannot be countenanced. The existence of an application and the date on which the same was sent or received is the subject matter of dispute in the present writ petition.
8. The learned Single Judge, in the impugned judgment, directed that the pension payable is to be disbursed with effect from the date of receipt of the application. We are afraid that the learned Single W.A.No.1910 of 2011 - 7 - Judge did not examine as to whether the despatch of Exhibit P2 application and the receipt by the Central Government is in fact discernible from the records of the case. We have given anxious consideration to this aspect. As noticed earlier, Exhibit P2 does not reveal any date. Nor does it show any affirmation before a Judicial First Class Magistrate as is required by Exhibit P1 Scheme. Exhibit P1, by clause 6, requires an application duly filled in and supported by required documents as proof of claim of suffering to be sent to the Chief Secretary to the State Government and a second copy to be sent to the Deputy Secretary to the Government of India, Freedom Fighters Division, Ministry of Home Affairs; which latter copy is meant to be an advance copy.
9. We have, in the course of hearing of the above Writ Appeal, impleaded the State of Kerala as additional 2nd respondent by order dated 8.2.2012. We had also directed the Government Pleader to peruse the files of the District Collector to verify whether there is in existence an application by the 1st respondent. The Central Government Counsel was also directed to verify their files so as to know the exact date of receipt of application. The learned Government Pleader, after verification of the files, has submitted before Court that W.A.No.1910 of 2011 - 8 - there is no such application in the files of the District Collector, Kannur and that the recommendation was made based on Exhibit P4 judgment and also considering the fact that the 1st respondent's husband's participation in the freedom struggle has already been recognized by the State Government in granting family pension to the widows under the State Government pension scheme. The Central Government Counsel produced the files regarding the grant of family pension to the 1st respondent before us. The said files also support the stand adopted by the Government Pleader for the State.
10. We are, hence, constrained to look into the records of the case alone and the attendant circumstances as is revealed from such records. We are unable to decipher the date in the postal receipts produced by the 1st respondent in the earlier writ petition by a reply affidavit, which is produced in the instant writ petition as Exhibit P3. Exhibit P2 application also does not reveal the date; nor is the same affirmed before a Judicial First Class Magistrate. In such circumstances, this Court is disabled from holding unequivocally that the application was sent in the year 1998 and received by the Central Government in the said year. This, according to us, clearly distinguishes the case of the 1st respondent from that of the petitioner in W.A.No.1910 of 2011 - 9 - W.P.(C).No.33068 of 2009. The learned Single Judge has, in fact, proceeded on the premise that the application in fact was made as contended by the 1st respondent in the writ petition in the year 1998 itself. It is on such premise that after considering the various decisions of the Hon'ble Supreme Court and this Court directed disbursement of pension from the date of receipt of the application.
11. The proposition of law as discernible from the judgments referred to in the impugned judgment is unassailable. We would, in this context, deem it fit to refer to the judgment of the Supreme Court, relied on by the learned counsel for the 1st respondent, reported in Mukund Lal Bhandari v. Union of India [1993 Supp (3) SCC 2]. In the said case the Supreme Court held that considering the spirit and tenor of the desire of the Government to assist and honour those who had given the best part of their life for the country, the Government cannot raise pleas of limitation against such claims. This was in the context of the Central Government taking a stand that the applications can be considered only if they are received before a particular date, notwithstanding the fact that the applicants were entitled to such pension under the scheme. The Supreme Court deprecated such stand of the Government of India and observed that if possible it is for the W.A.No.1910 of 2011 - 10 - Government to find out the freedom fighters or their dependants to ensure the implementation of such schemes. However, considering the contention whether notwithstanding the date on which the application itself is made, the applicant should be entitled to pension with effect from an earlier date, being the date of sanction itself; the Court held that the benefit should flow only from the date of application and not from any date earlier. Bound by the above authoritative precedent and faced with the long dark shadow cast on the exact date of application, we are afraid, we are unable to sustain the claim of the 1st respondent for retrospective grant of family pension under the SSS Pension Scheme from the date of the application. No date as such is discernible with respect to the actual date of application. Coupled with this is the fact of long delay in approaching this Court. The 1st respondent claims to have filed the application in 1998, but rested contend though nothing transpired thereafter. The 1st respondent chose to approach this Court in the year 2009. This Court directed the State Government to send necessary recommendation to the Central Government by Exhibit P4 judgment, on the basis of which the 1st respondent has been granted pension with effect from the date of Exhibit P4 judgment. Any claim of retrospectivity cannot necessarily flow from Exhibit P4 judgment, but W.A.No.1910 of 2011 - 11 - has to be established by the 1st respondent/writ petitioner independently and unerringly.
12. The Hon'ble Supreme Court, based on precedents, distinguished the principles underlying continuing wrongs and recurring/successive wrongs, as applied to service law disputes in Union of India v. Tarsem Singh [(2008) 8 SCC 648]. The Supreme Court referred to Shiv Dass v. Union of India [(2007) 9 SCC 274] and extracted para 10 of the said decision:
"In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. ............. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years".
The Supreme Court in Tarsem Singh's case (supra), with respect to belated grant of disability pension, held the direction of the High Court to grant arrears relating to 16 years, with interest, as unjustified and limited the claim to three years before the date of writ petition. We are of the opinion that in the instant case, considering the non-ascertainment of date of receipt of application and even the date of such application as also the long delay of 11 years, the 1st respondent W.A.No.1910 of 2011 - 12 - is entitled to only arrears of pension for three years anterior to the date of filing of the earlier writ petition, which is 17.11.2009. The 1st respondent, hence, is entitled to arrears of family pension for three years prior to filing of W.P.(C).No.33069 of 2009, i.e., from 17.11.2006, that too without any interest. The impugned judgment of the learned Single Judge is modified to the above extent. The Union of India shall disburse the amounts within three months from the date of receipt of a copy of this judgment, failing which interest shall be payable at the rate of 10% per annum from 9.3.2010, the date of Exhibit P4 judgment.
The Writ Appeal is partly allowed with the above modification. No costs.
Sd/-
C.N.Ramachandran Nair, Judge Sd/-
K.Vinod Chandran, Judge.
vku/-
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