Kerala High Court
C.K.Sukumaran vs Union Of India
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934
WP(C).No. 4283 of 2012 (I)
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PETITIONER:
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C.K.SUKUMARAN,
S/O. KUNCHU, PULICKAL THODY VEEDU, PERATTIL
OLLUR VILLAGE, CHIRAYANKIZH, TRIVANDRUM DISTRICT.
BY ADVS.SRI.M.P.RAMNATH
SRI.P.RAJESH (KOTTAKKAL)
RESPONDENTS:
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF HOME AFFAIRS, LOK NAYAK BHAVAN,
KHAN MARKET,
NEW DELHI - 110 003.
2. STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
GENERAL ADMINISTRATION (FREEDOM FIGHTERS PENSION - A)
DEPARTMENT,
SECRETARIAT, TRIVANDRUM - 695 001.
3. THE DISTRICT COLLECTOR,
COLLECTOR'S OFFICE, TRIVANDRUM-695001.
R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R2 BY GOVERNMENT PLEADER SANGEETHA K.A
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-03-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 4283 of 2012 (I)
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APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1:- COPY OF JUDGEMENT DATED 09.03.1998 IN O.P.NO.2779/1998-E.
EXT.P2:- COPY OF LETTER-DATED 13.02.1974 IN FILE NO.19/4112/73-FF.VIII ISSUED
BY THE 1ST RESPONDENT.
EXT.P3:- COPY OF THE ORDER-DATED 12.02.1986 IN PROCEEDING NO.119/5033/85-
FF(SZ) OF THE 1ST RESPONDENT.
EXT.P4:- COPY OF THE LETTER NO.44632/FFP.A1/98/GAD TVM DATED 10.08.1998
FROM 2ND RESPONDENT TO PETITIONER.
EXT.P5:- COPY OF REPLY ISSUED BY THE PETITIONER TO THE 3RD
RESPONDENT'S LETTER DATED 23.11.1998.
EXT.P6:- COPY OF JUDGEMENT DATED 23.02.1999 IN OP NO.4605/1999.
EXT.P7:- COPY OF COMMUNICATION DATED 24.08.1999 IN PROCEEDING
NO.52/KERALA/63/99-FF(LIT.II)SZ FROM THE 1ST RESPONDENT TO THE
PETITIONER.
EXT.P8:- COPY OF THE COUNTER AFFIDAVIT DATED 25.09.2000 FILED ON BEHALF
OF THE 1ST RESPONDENT IN OP 29072/1999.
EXT.P9:- COPY OF JUDGEMENT DATED 26.03.2001 IN OP 29072/99.
EXT.P10:- COPY OF LETTER DATED 08.01.1996 BEARING NO.J.4.2310/94 FROM 3RD
RESPONDENT TO THE PETITIONER.
EXT.P11:- COPY OF PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY
M.KUNCHURAMAN, EX.MINISTER, KERALA DATED 29.12.1972.
EXT.P12:- COPY OF PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY
K.P.NEELAKANTA PILLAI EX.SPEAKER & GENERAL SECRETARY TO
CONGRESS DATED 05.10.1972.
EXT.P13:- COPY OF PERSONAL KNOWLEDGE CERTIFICATE ISSUED BY
KATTAIKONAM V.SRIDHARAN, EX. MLA DATED 15.12.1973.
EXT.P14:- COPY OF CO-PRISONER CERTIFICATE ISSUED BY U.NEELAKANTAN,
EX.MLA AND THAMRA PATHRAM HOLDER AND RECIPIENT OF SSS
PENSION DATED 05.04.2001.
EXT.P15:- COPY OF CHARGE SHEET NO.612/1122(ME).
EXT.P16:- COPY OF REPLY DATED 16.08.1973 ISSUED BY SI OF POLICE ATTINGAL
TO THE PETITIONER ABOUT NON AVAILABILITY OF RECORDS.
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WP(C).No. 4283 of 2012 (I)
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EXT.P17:- COPY OF APPLICATION DATED 04.09.1999 MADE BY THE PETIIONER
BEFORE HON'BLE CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM .
EXT.P18:- COPY OF SWORN AFFIDAVIT OF AGE PROOF BY THE PETITIONER
BEFORE HON'BLE 1ST CLASS JUDICIAL MAGISTRATE, ATTINGAL DATED
24.01.1996.
EXT.P19:- COPY OF LETTER DATED 04.10.2001 IN PROCEEDING
NO.52/CC/269/2000/FF/LIT II/SZ ISSUED BY 1ST RESPONDENT TO THE
PETITIONER.
EXT.P20:- COPY OF LETTER DATED 20/25.09.2001 ISSUED BY 2ND RESPONDENT TO
1ST RESPONDENT.
EXT.P21:- COPY OF APPLICATION DATED 11.10.2001 MADE BY THE PETITIONER TO
HON'BLE CHIEF JUDICIAL MGISTRATE TRIVANDRUM.
EXT.P22:- COPY OF JUDGEMENT DATED 21.02.2002 IN OP 32061/2001.
EXT.P23:- COPY OF LETTER DATED 29.05.2002 BEARING NO.G4.75608/2001
RECEIVED BY THE PETITIONER FROM 3RD RESPONDENT REQUIRING
AGE PROOF.
EXT.P24:- COPY OF LETTER DATED 02.06.2002 FROM THE PETITIONER TO THE 3RD
RESPONDENT.
EXT.P25:- COPY OF LETTER DATED 07.06.2002 FROM THE 3RD RESPONDENT TO
THE PETITIONER.
EXT.P26:- COPY OF LETTER DATED 10.06.2002 FROM THE PETITIONER TO THE 3RD
RESPONDENT.
EXT.P27:- COPY OF LETTER DATED 01.07.2002 FROM PETITIONER TO 2ND
RESPONDENT.
EXT.P28:- COPY OF LETTER DATED 10.10.2002 ISSUED BY THE PETITIONER TO THE
2ND RESPONDENT.
EXT.P29:- COPY OF LETTER DATED 25.10.2002 BEARING NO.101799/FFPA1/01/GEN
ADMIN.
EXT.P30:- COPY OF LETTER DATED 15.09.2003 ISSUED BY PETITIONER TO THE 1ST
RESPONDENT.
EXT.P31:- COPY OF LETTER DATED 04.02.2004 FROM PETITIONER TO THE HOME
MINISTRY.
EXT.P32:- COPY OF LETTER DATED 23.02.2004 FROM 1ST RESPONDENT TO THE
2ND RESPONDENT.
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WP(C).No. 4283 of 2012 (I)
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EXT.P33:- COPY OF LETTER DATED 21.05.2004 ISSUED BY 1ST RESPONDENT TO
THE PETITIONER.
EXT.P34:- COPY OF LETTER DATED 21.05.2004 ISSUED BY 1ST RESPONDENT TO
THE PETITIONER.
EXT.P35:- COPY OF THE APPLICATION DATED 23.10.1998 SUBMITTED BY
PETITIONER ALONG WITH CO-PRISONER CERTIFICATE ISSUED BY
SRI.R.ACHUTHAN DATED 27.10.1985.
EXT.P36:- COPY OF JUDGEMENT DATED 21.08.2008 IN WP(C) NO.10537 OF 2005 OF
THIS HON'BLE COURT.
EXT.P37:- COPY OF LETTER DATED 01.04.2009 ISSUED BY THE INFORMATION
OFFICER OF THE 2ND RESPONDENT WHICH WAS ACCOMPANIED WITH
EXT.P38.
EXT.P38:- COPY OF LETTER ISSUED BY 2ND RESPONDENT DATED 12.12.2008
BEARING NO.46364/FFPA1/2005/GAD TO THE 1ST RESPONDENT.
EXT.P39:- COPY OF JUDGEMENT DATED 09.11.2011 IN CONTEMPT CASE NO.964 OF
2011 OF THIS COURT.
EXT.P40:- COPY OF THE LETTER DATED 31.10.2011 ISSUED BY 1ST RESPONDENT
TO PETITIONER COMMUNICATING EXT.P41.
EXT.P41:- COPY OF THE ORDER DATED 23.03.2009 FORWARDED TO THE PETIIONER
WITH EXT.P40 LETTER.
RESPONDENT'S EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
MG
S. SIRI JAGAN, J.
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W.P.(C)No.4283 of 2012
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Dated this the 29th day of March, 2012
J U D G M E N T
This is the 6th writ petition a poor freedom fighter who sacrificed his entire youth for our country, had to file to get the pittance of pension offered by the Government of India under the Swathanthratha Sainik Samman Pension Scheme (S.S.S.P.) to freedom fighters. As early as on 9.3.1998, this Court by Ext.P1 judgment in O.P. No.2779/1998, upheld the petitioner's claim for freedom fighters' pension under the State Scheme, which the petitioner has been drawing. After Ext.P1 judgment, readily the State Government gave the petitioner pension under the State scheme. But the petitioner was not that lucky with the Central Government. He obtained Exts.P6, P9, P22 & P36 judgments. Since Ext.P36 judgment was not complied with, the petitioner had to file contempt case No.964/2011, in which by Ext.P39 judgment, I had directed the officer concerned to pay Rs.15,000/- as costs. It is thereafter Ext.P41 order dated 23.3.2009 was served on the petitioner very belatedly, again W.P.(C)No.4283 of 2012 -2- rejecting the petitioner's claim. Ext.P36 judgment which is the last of the series of the judgments obtained by the petitioner reads thus:
"The petitioner claims to be a freedom fighter. He applied for pension under the Swatantrata Sainik Samman (SSS) Pension Scheme (Ext.P8) of the Government of India. The same was rejected by the 1st respondent by Ext.P34 letter of the 1st respondent, wherein it was stated that as per the State Government's letters dated 15.7.2002 and 5.8.2002, the State Government has not recommended the claim of the petitioner for pension under SSS Pension Scheme, as he had not produced sufficient documentary evidence/certificates to prove his claim. The petitioner is challenging that order. According to the petitioner, the petitioner had in fact produced all documents necessary before respondents 2 and 3 to prove his eligibility for pension under the SSS Pension Scheme. The petitioner points out that under Ext.P8 Scheme, in the absence of direct documents to prove the petitioner's claim, he has the alternative of proving his claim by producing a co-prisoner's certificate along with a non-availability of records certificate relating to the petitioner's imprisonment during the freedom struggle as provided under paragraph 2.2(b) of Ext.P8. The requirement as per the said clause is that the petitioner should produce a non availability of records certificate along two co-prisoners' certificates from freedom fighters who have proven jail sufferings with the applicant in jail. In case the certifier happens to be a sitting or Ex.MP/MLA, only one certificate in the place of two is required. The petitioner points out that by Ext.P35, the petitioner had produced a co-prisoner's certificate from one Sri.R.Achuthan, Ex.MP and Ex.MLA who had imprisonment for more than a year, along with which the petitioner had produced Exts.P16 and P17 non-availability of records certificates, which are sufficient to prove the claim of the petitioner. The petitioner submits that on the face of these documents, the respondents cannot deny the claim of the petitioner. The petitioner further submits that as proof of his age, he had produced an affidavit sworn to before a Magistrate, Ext.P18, in the absence of any other records like school records available, as the petitioner is a drop out from the school to join the freedom movement and the school records are also not available.
2. The petitioner points out that earlier the petitioner had filed an application before this Court for a direction to the 3rd respondent to produce copy of the proceeding No.G4/86037/917 and notice number 95825/99 of the Advisory W.P.(C)No.4283 of 2012 -3- Board, which would go to prove that the Advisory Board had once recommended the petitioner's claim. This Court had passed an order dated 26.5.2008 directing respondents 2 and 3 to produce those documents. In answer to the said direction, an affidavit has been filed stating that the said documents are not available. Therefore, this Court passed the following order on 11.6.2008.
'In the affidavit now filed pursuant to order dated 26.5.2007, in paragraph 5 it is stated thus:
"The District Collector, Thiruvananthapuram vide his letter dated, 04.06.2008 has reported that the copy of proceeding number G4/86037/917 and notice number 95825/99 of the Advisory Board held on 11.06.1999 are not available in his office. This respondent may therefore kindly be exempted from producing the above proceedings."
This is not acceptable. The District Collector is expected to maintain the file since it is common knowledge that the finalisation of proceedings in application for Freedom Fighters Pension, especially S.S.S. Pension would require quite some time. Therefore, the respondents are directed to take earnest efforts to find out the said documents and produce the same before this Court. This shall be done within a period of two weeks."
Pursuant to the above, an affidavit has been filed by the Senior Superintendent, Suit Section, Collectorate, Thiruvananthapuram, to the effect that the said files have been destroyed. The petitioner would submit that after destroying all documents the 2nd respondent cannot deny benefits due to the petitioner on the ground that those documents are not available.
3. A counter affidavit has been filed by the State to the effect that the petitioner has not produced the relevant records necessary for proving the petitioner's claim. The petitioner further points out that in Ext.P20 letter issued by the 2nd respondent, it has been specifically stated that the petitioner had produced a copy of the SSS pension application dated 23.10.98, co-prisoner certificate from S/Shri. Achuthan and Neelakantan and personal knowledge certificate from S/Shri.Kunjuraman Ex-MLA, Neelakantan Pillai and Kattaikonam Sreedharan. The petitioner points out that in view of these clear evidence, respondents 2 and 3 cannot now state that the petitioner has not produced the documents necessary for proving his eligibility for SSS pension. The petitioner, therefore, seeks the following reliefs:
W.P.(C)No.4283 of 2012 -4-
"A). Issue a writ in the nature [sic] certiorari or such other writs, orders or directions quashing Exhibit P34 order of the 1st respondent and also to set aside the letters dated 15.7.2002 and 5.8.2002 said to be issued by respondents 2 and 3 and referred to in Exhibit P34.
B). Issue a writ in the nature of mandamus or such writs orders or directions directing the 1st respondent to award pension under the Swathanthra Sainik Samman Pension Scheme of the Government of India from the date of his 1st application for SSS pension i.e. 11.10.1972."
4. I have considered the rival contentions in detail.
5. Going by Ext.P8 SSS Pension Scheme, the necessary documents for proving the petitioner's claim in the absence of direct evidence are a co-prisoner's certificates from a Ex.MP or MLA and a non-availability of records certificate. I am satisfied that Ext.P35, which has admittedly been produced by the petitioner, as is clear from Ext.P20, is a document as contemplated under the Scheme. He has also produced Exts.P16 and P17 non availability of records certificates and Ext.P18 affidavit regarding his age. These are sufficient documents as per Ext.P8 scheme. The attitude of respondents 2 and 3 in the matter also would cast considerable doubt on their bonafides in the matter. When they were directed to produce documents which admittedly were there in the files, they filed an affidavit to the effect that those files were destroyed. Thereafter, they have chosen to file a counter affidavit saying that the petitioner has not produced necessary documents. At the same time, in Ext.P20, the genuineness of which is not disputed by respondents 2 and 3, it is specifically stated that the petitioner has produced relevant documents. Therefore, respondents 2 and 3 cannot now take a stand that the petitioner's claim cannot be considered now in the absence of documents proving the eligibility of the petitioner. It is clear that the petitioner has been fighting for his legitimate claim for over two decades. I am of opinion that this is not the way both the State Government and the Central Government should treat a freedom fighter. The very scheme has been envisaged for honouring our freedom fighters who are a vanishing category now. In fact by putting the petitioner to such trouble, we are disgracing ourselves. That being so, I am satisfied that respondents 2 and 3 shall not put any further hurdles on the petitioner's getting freedom fighter's pension. Accordingly, this writ petition is disposed of with the following directions:
The 2nd respondent shall forward a recommendation regarding the eligibility of the petitioner for pension under the SSS Pension Scheme on the basis of the documents, true copies of which are produced along with the writ petition, particularly W.P.(C)No.4283 of 2012 -5- Exts.P35, P16, P17 and P18. Such recommendation shall be forwarded to the 1st respondent within one month from the date of receipt of a certified copy of this judgment. On receipt of the same, the 1st respondent shall, within two months, pass final orders under the SSS Pension scheme. The petitioner shall produce a copy of the writ petition and all documents produced along with the same and subsequently, to the 2nd respondent along with a certified copy of this judgment for compliance.
The writ petition is allowed as above."
2. The claim of the petitioner was verified by the Government and Ext.P38 recommendation dated 12.12.2008 was forwarded by the State Government to the Government of India recommending the case of the petitioner for SSS Pension. That recommendation reads thus:
WP(C) No.10537/05 was filed by Shri.C.K.Sukumaran for sanctioning Swatantrata Sainik Samman Pension for his claimed sufferings in connection with the National Freedom Struggle.
In the judgment dated, 21.08.2008, the Hon'ble High Court has directed the second respondent (State of Kerala) to forward a recommendation regarding the eligibility of the petitioner for pension under Swatantrata Sainik Samman Pension scheme on the basis of the documents, true copies of which are produced along with the WP(C) particularly Exts P35, P16, P17 and P18. Such recommendation shall be forwarded to Government of India (1st respondent) within one month from the date of receipt of a certified copy of the judgment. The petitioner shall produce a copy of the writ petition and all documents produced along with the same to 2nd respondent (State Government) along with a certified copy of the judgment for compliance.
The applicant Shri.C.K.Sukumaran in his application dated 23.10.1998 claimed that he was arrested by the Attingal and Quilon Police and detained in the lock up without trial due to his participation in the freedom struggle during 1938 - 1947 for the following spells 21.09.1938 - 25.03.1939; 17.08.1942 - 21.02.1943 and 15.01.1947 - 20.08.1947, ie., a total of one W.P.(C)No.4283 of 2012 -6- year, seven months and 13 days without trial.
Exhibit P35 is the copy of the Co-prisoner Certificate issued by Shri.R.Achuthan Ex.M.P. & Ex.M.L.A, wherein it is certified that the applicant was lodged in the Attingal and Quilon police lock-up during the periods 21.09.1938 - 25.03.1939 ; 15.01.1947 to 20.08.1947. Even though the certifier claimed that he suffered imprisonment during the freedom struggle and was lodged in Attingal Varkala and Quilon lock-ups for the periods 21.09.1938 - 25.03.1939, 10.05.1939 - 21.12.1939 ; 09.08.1942 - 25.11.1942 ; 15.01.1947 to 20.08.1947 it is not clear whether he was convicted in any case. More over even though the certifier claimed around two years of imprisonment the fact that whether he was in receipt of Swatantrata Sainik Samman Pension cannot be adduced from the certificate.
In the Exts P16 the Sub-Inspector of Police Attingal, had informed the petitioner that the records in respect of the freedom fighters in that police lock-up during 1114 and 1115 (1938 and 1939) are not seen and hence denied the certificate applied for by the petitioner. In Ext P17 (application dated 04.09.1999 addressed to the Hon'ble CJM, Thiruvananthapuram for jail records/Non-availability of Records certificate) the applicant claimed that as a freedom fighter he was arrested and detained in the Attingal Police lock up from 21.09.1938 to 25.03.1939 and 17.08.1942 to 21.02.1943 (cc.No.66/1942) without trial and had requested copy of jail records/Non- availability of Records Certificate of the respective periods. As the records for the above period were not available, the application was rejected.
Ext P18 is an affidavit on the date of birth of the applicant.
In Ext P21 application dated 11.10.2001 made before the CJM Thiruvananthapuram the applicant claimed lock-up sufferings at Attingal police station for the periods 21.09.1938 to 25.03.1939 ; 17.08.1942 to 20.02.1943 ; 15.01.1947 to 20.08.1947 and had requested for jail records/Non-availability of Records Certificate. This application was also rejected due to lack of records. It is noteworthy that even though the claims made in ext P17 and Ext P21 are different the two applications are disposed of in the same manner.
In the light of the judgment, government have called for the reports of the District Collector Thiruvananthapuram, the Additional Director General of Police (Prisons) Director General of Police (Law and Order) and the Commissioner of Land Revenue on the availability of records in connection with CC.No.66/1942 and in the reference 3rd to 6th cited all of them W.P.(C)No.4283 of 2012 -7- have reported that the records are not available and hence Government certify that "All concerned authorities of the State Government who could had relevant records in respect of the claim of the applicant have been consulted and it is confirmed that the official records of the relevant time are not available." and recommend Shri.C.K.Sukumaran's application for Swatantrata Sainik Samman Pension in the light of the judgment cited 2nd for further action at your end. This government have thus complied with the judgment within the extended time limit allowed by the Hon'ble High Court."
3. Since still no orders were served on the petitioner, the petitioner filed contempt case No.964/2011 in which I passed the following order:
"This contempt case is filed by the petitioner in W.P.(C). No. 10537/2005 complaining of non-compliance with the directions in that judgment . The directions in that judgment are as follows;
"The 2nd respondent shall forward a recommendation regarding the eligibility of the petitioner for pension under the SSS Pension Scheme on the basis of the documents, true copies of which are produced along with the writ petition, particularly Exts.P35, P16, P17 and P18. Such recommendation shall be forwarded to the 1st respondent within one month from the date of receipt of a certified copy of this judgment. On receipt of the same, the 1st respondent shall, within two months, pass final orders under the SSS Pension scheme. The petitioner shall produce a copy of the writ petition and all documents produced along with the same and subsequently, to the 2nd respondent along with a certified copy of this judgment for compliance."
2. The petitioner's complaint is that the petitioner has not received any orders on his application for SSS pension. Originally the respondent filed an affidavit stating that Annexure R1(a) order has been passed as early as in March, 2009, and the same has been forwarded to the petitioner. On a W.P.(C)No.4283 of 2012 -8- scrutiny of Ext.R1(a) order, it is seen that Ext.R1(a) order was forwarded to one Sri.C.K.Sukumaran at Thalassery, whereas the petitioner is a resident of Chirayankizh in Thiruvananthapuram district. When this was pointed out to the respondent, the respondent took time to file an additional affidavit and affidavit dated 7.10.2011 was filed still taking the stand that the order was served through the Government of Kerala as evidenced by Annexure R1 produced along with that affidavit. When it was pointed out that still the respondent has not satisfied this Court that they have taken appropriate steps to comply with the directions of this Court, an additional affidavit dated 1.11.2011 has been filed taking the stand that inadvertently the order was forwarded in a wrong address. Of course, insofar as the order has already been passed pursuant to the direction in Annexure A1 judgment, the petitioner has to certainly challenge the same appropriately. But because of the callous and negligent action of the respondent, the petitioner lost three precious years of his life. The petitioner is aged 90 years. He is running out of time and because of callous act of the respondent he has lost three years. In view of the callous and negligent way in which the respondent has treated the matter, I am inclined to direct the respondent to pay costs to the petitioner. Accordingly, I close this contempt case without prejudice to the right of the petitioner to challenge the order now passed appropriately. But the respondent shall pay costs of ` 15,000/- to the petitioner within one month from today. It would be open to the respondent to recover the said costs from the person(s) responsible for the mistake. However, the said costs shall not be debited to the exchequer. If the cost is not paid within the time stipulated, it would be open to the petitioner to move this Court under the Contempt of Courts Act for non-compliance with the said direction."
4. That is the history of the order impugned in this case which is Ext.P41, which reads thus:
"I am directed to refer to the above mentioned subject and to state that in its judgment dated 21st August, 2008 has directed the Central Government to consider the claim of the petitioner on receipt of the recommendation of the State Government.
2. The State Government vide its letter No.46364/FFP.A1/2005/GAD dated 12th December, 2008 has recommended the claim of the petitioner and inter alia states as follows:-
".... Even though the certifier claimed that he suffered imprisonment during the freedom struggle and was lodged in Attingal, Varkala and Quilon lock-ups for W.P.(C)No.4283 of 2012 -9- the periods 21.09.1938-25.03.1939; 10.05.1939- 21.12.1939; 09.08.1942-25.11.1942;15.01.1947 to 20.08.1947, it is not clear whether he was convicted in any case. Moreover even though the certifier claimed around two years of imprisonment the fact that whether he was in receipt of Swatantrata Sainik Samman Pension cannot be adduced from the certificate."
"In the Exts.P16 the Sub-Inspector of Police Attingal, had informed the petitioner that the records in respect of the freedom fighters in that police lock-up during 1114 and 1115 (1938 and 1939) are not seen and hence denied the certificate applied by the petitioner. In Ext.P17 (application dated 4.9.1999 addressed to the Hon'ble CJM, Thiruvananthapuram for jail records/Non- availability of Records Certificate) the applicant claimed that as a freedom fighter he was arrested and detained in the Attingal Police lock up from 21.09.1938 to 25.3.1939 and 17.8.1942 to 21.2.1943 (cc.NO.66/1942) without trial and had requested copy of jail records/Non-availability of Records Certificate of the respective periods. As the records for the above period were not available the application was rejected".
The claim of Shri. C.K. Sukumaran has been examined in compliance of the directions of the Hon'ble High Court keeping in view the report of the State Government, documents on record and the applicable provisions of the Swatantrata Sainik Samman (S.S.S.) Pension Scheme, 1980 and it is found that Shri.C.K. Sukumaran is not eligible for grant of Samman pension due to the following deficiencies/shortcomings:-
(i) Primary evidence - The jail suffering claimed is 'without trial'. No documentary evidence has been given.
(ii) Secondary evidence-
(a) NARC- The Sate Government has furnished a valid NARC.
(b) CPCs - CPC by Shri. R. Achuthan, Ex-M.P. & Ex.
MLA is not acceptable as the State Government has not verified the same.
(iii) State Government vide its letter No.46364/FFP.A1/2005/GAD dated 12th December, 2008 has recommended the claim without any basis and therefore the report is ambiguous and contradictory.
4. In the given circumstances, the claim of W.P.(C)No.4283 of 2012 -10- Shri.C.K.Sukumaran does not meet the eligibility criteria and evidentiary requirements of the Swatantrata Sainik Samman Pension Scheme, 1980. It is, therefore, regretted that Shri.C.K.Sukumaran is not eligible for grant of Samman pension under the Swatantrata Sainik Samman Pension Scheme, 1980. Hence, his claim is, hereby, rejected.
5. It is requested that this decision may please be communicated to Shri. C.K. Sukumaran, under intimation to this Ministry.
6. This issues with the approval of the competent authority."
5. Going by the above, the only question to be decided is whether the Personal Knowledge Certificate issued by Sri. R. Achuthan Ex.M.P. and Ex. M.L.A. is acceptable as a valid Personal Knowledge Certificate. The only contention now raised before me by the Government of India is that in Ext.P38 the State Government has not vouched for the genuineness of that Personal Knowledge Certificate. According to the learned Government Pleader, there is no reason to have such a suspicion since although it is not stated in so many words therein, Ext.P38 is clear to the effect that the genuineness of the Personal Knowledge Certificate issued by Sri. R. Achuthan was never in doubt. But what was in doubt was whether he was convicted in any case and as to whether he was in receipt of SSS Pension. I also have no doubt regarding the same. Ext.P38 is W.P.(C)No.4283 of 2012 -11- abundantly clear. The same evidently proceeds on the basis that the certificate issued by Sri. Achuthan is genuine, but the defects pointed out were that it is not clear whether he was convicted in any case and that it cannot be ascertained as to whether he was in receipt of SSS Pension. It was the easiest of easy thing for the Government of India to ascertain whether Sri. R. Achuthan was receiving SSS Pension. But they have not chosen to take the trouble of ascertaining the same. If Sri.Acuthan is receiving SSS Pension, they would have all the papers of Sri. R. Achuthan. At least they could have requested the State Government for clarification in respect of the same, if they had any doubts. But the person dealing with the same in the Central Ministry was not that kind enough to the poor freedom fighter. Instead he chose to stand on technicalities. In fact the entire history of this petitioner's claim for pension itself is a history of rejection on technicalities only. It is not the fate of this petitioner alone. It has been the history of almost all claims for pension under the SSSP Scheme which has been coming up before this Court and I myself have W.P.(C)No.4283 of 2012 -12- seriously criticized the attitude of the persons who pass orders under the scheme in Central Secretariat. I even had occasion to comment their attitude is so only because they do not have patriotism in their mind and they do not realise the sacrifice these poor persons made for the country to enable those persons to sit in air conditioned rooms in cozy chairs to pass such orders rejecting claims on mere technicalities. But I find that such observations in judgments do not have any effect on these persons. They continue to treat genuine freedom fighters also like beggars extending their palms for alms doled out by the persons who pass such orders. This Court and the Supreme Court had been repeatedly impressing on the State and Central Governments the necessity to treat these persons with respect. The Hon'ble Supreme Court has even gone to the extent of holding that it is the duty of the State and Central Governments to find out freedom fighters and to pay pension if due to them. But, alas, the sentiments expressed by this Court and the Hon'ble Supreme Court never permeated the thick skins of those persons who sit in cozy W.P.(C)No.4283 of 2012 -13- armed chairs in air conditioned rooms to pass such orders.
6. The same thing happened in this case also. Even after a quarter of a century and five writ petitions, the petitioner still stands where he started only because of the recalcitrant attitude of the officers who considered the petitioner's case. Even after the State Government finding that the petitioner is a genuine freedom fighter, it had absolutely no effect on the officer who passed Ext.P41 order. He rejected the claim now on the ground that in Ext.P38 it is not specifically stated that the Personal Knowledge Certificate of Sri. Achuthan is a genuine one. When Ext.P38 does not say otherwise and when Ext.P38 proceeds on the basis that it is a genuine one, I am at a loss to understand how the person who passed Ext.P41 order could take such a stand, that too without bothering to enquire with the State Government about his doubts. In any event, the learned Government Pleader submits that the Government has no doubt regarding the genuineness of the Personal Knowledge Certificate issued by Sri. R. Achuthan, who is an Ex. M.P. & Ex MLA. Their only doubt is as to W.P.(C)No.4283 of 2012 -14- whether for want of conviction in a criminal case the imprisonment of the certifier is sufficient for his becoming an eligible qualifier. This Court has already settled the law on that point and it has been decided that conviction is not a mandatory requirement if the person had jail sufferings. Whether the certifier is in receipt of the SSS Pension can be easily verified by the Central Government themselves. In so far as that has not been projected in Ext.P41 as a reason to reject the claim, I need not consider that question at all. Even otherwise that is not a criterion for deciding whether a person is a qualified certifier or not.
7. The above discussion leaves no room for doubt that the petitioner is a genuine freedom fighter eligible for pension under the SSSP Scheme. Therefore, Ext.P41 is quashed. It is declared that the petitioner is entitled to pension under the SSSP Scheme. The application for pension was filed by the petitioner admittedly on 23.10.1998. The petitioner is entitled to pension with effect from that date. The petitioner is also entitled to interest on the arrears of pension at the rate of 6% per annum from W.P.(C)No.4283 of 2012 -15- that date. Arrears with interest as fixed above shall be disbursed to the petitioner, as expeditiously as possible at any rate, within one month from the date of receipt of a copy of this judgment.
In view of the fact that the petitioner had to go through five writ petitions and a contempt case for getting what is due to him which the respondents should have suo motu given to the petitioner, I am inclined to award costs also. The 1st respondent shall pay to the petitioner costs of Rs.50,000/- (Rupees fifty thousand only) along with the arrears. The interest and costs shall not be debited to the exchequer and the same shall be recovered from the persons responsible for denying pension to the petitioner including the person who passed Ext.P41 order.
The writ petition is allowed as above.
S. SIRI JAGAN JUDGE shg/-