Kerala High Court
Pappu Kesavan vs Union Of India (Uoi) on 13 October, 1995
Equivalent citations: AIR1996KER235, AIR 1996 KERALA 235, ILR(KER) 1996 (3) KER 313 (1996) 2 KER LT 1035, (1996) 2 KER LT 1035
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT
Thomas, Ag. C.J.
1. Appellant is admittedly a freedom fighter. It is also admitted that he had suffered imprisonment. It is further admitted that he is a recipient of pension under the scheme formulated by the Government of Kerala for freedom fighters. But with all these plus points he failed to get pension under the Swathanthra Sainik Samman Pension Scheme, 1980 formulated by the Central Government. He is aggrieved by Ext. P8 order rejected his application for pension under the said scheme which will be referred to hereinafter as the Central Scheme.
He filed the original petition under Article 226 of the Constitution for quashing Ext.P8 and for a direction to the Central Government to grant pension to him. Learned single Judge dismissed the original petition. Hence this appeal.
2. We have to mention at the outset that Shri M.V.S. Nampoothiri, learned Additional Central Government Standing Counsel, submitted that a counter was filed on behalf of the Central Government. But no counter has, in fact, come to the records even though a reference has been made by the learned single Judge to an unsatisfactory counter-affidavit sworn to by one Shri Y.V. Naranje, who was the Deputy Secretary in the Ministry of Home Affairs. Some scathing remarks were made by the learned single Judge regarding the mention of a particular name in the counter-affidavit. But the fact remains that the registry has not noted that any counter has been filed. Nor has any such counter been incorporated in the records. We record this without entering upon a finding whether a counter was, in fact, filed or not.
3-4. Ext.P5 is the application put in by the appellant for pension under the Central Scheme. In it he claimed to have undergone imprisonment for the requisite period (six months). He made it out on the strength of six months underground life he spent during the freedom struggle. He sought to support the said entry with a certificate (Ext.P6) issued by one V.K. Karunakaran whom the appellant described as a prominent freedom fighter as he had undergone imprisonment for more than five years during the freedom struggle. Upon the said application Ext.P8 order was passed rejecting his claim for pension under the Central Scheme.
5. Two reasons have been put forward by the Central Government in Ext.P8 for rejecting his claim. They are; (1) He has not produced any acceptable documentary evidence from official records in support of his claim of underground suffering. (2) The certificate issued by Shri V.K. Karunakaran is not acceptable as he is not a prominent freedom fighter "because his jail imprisonment is less than 5 years".
6. Shri T.R. Rajan, learned counsel for the appellant, contended before us that the application was disposed of in a very slipshod manner without application of mind. To bolster up the contention he produced the original of Ext.P8 before us. It is a cyclostyled facsimile containing tick marks indicating the two grounds mentioned above. Be that as it may, we have reasons to think that the authorities have not applied their mind seriously in projecting the two reasons for rejecting the claim of the appellant.
7. Appellant claimed that he had undergone imprisonment for more than six months. If found true, that is alone sufficient to entitle him for the pension under the Central Scheme, even if he did not succeed in proving that he went underground for any period. Ext.P2 was produced by him which is a true extract of the "Convict Register of Central Prison, Trivandrum". It shows under entry No. 16 that he was sentenced to rigorous imprisonment for 12 months under Sections 140, 428, 281, 144 and 141 of the Travancore Penal Code. It must be remembered that nobody has a case that the aforesaid sentence was not imposed on him in connection with his activities as a freedom fighter. He was interned on 25th Mithunam 1116 and the date of expiry of the sentence was noted against column No. 18 as 24th Mithunam 1117. As some remissions were granted to him, he was released prematurely and it is reckoned as 3 months and 20 days as the actual period of imprisonment undergone by him. For counting the period of imprisonment the Central Scheme provided that the actual period of sentence should be counted including the remissions. That can be seen from Explanation-I to the first eligibility clause dealing with imprisonment. The second explanation reads thus :
"Period of normal remission up to one month will be treated as part of actual imprisonment."
Appellant has a case that remission was granted to him by the then Maharaja of Travancore as a mark of joy when a child was born in the royal family. Appellant has averred this fact in the original petition which remains uncontroverted (even if the copy of the counter-affidavit produced by Shri M.V.S. Nampoothiri can be accepted as true, the aforesaid fact has not been controverted).
8. In this context it is worthwhile to refer to the decision of the Supreme Court in Surja v. Union of India, (1991) 4 SCC 366, wherein their Lordships held that the remission lawfully granted should also be counted as part of the period of jail term" for the purpose of eligibility for pension under the Central Scheme.
9. Alternatively, we may point out that the certificate issued by Shri V.K. Karunakaran (Ext.P6) could not have been marginalised on the premise that V.K. Karunakaran is not a prominent freedom fighter. A freedom fighter who had undergone imprisonment for more than- five years was deemed to be a prominent freedom fighter as per the Central Scheme. Shri V. K. Karunakaran, who issued the certificate, has stated in Ext.P6 itself the periods during which he was in prison. There is no finding in Ext.PS order that Shri V. K. Karunakaran had not been in jail during the period mentioned in Ext.P6. If so, how could it be said that Shri V.K. Karunakaran had not undergone imprisonment for more than 5 years? The authority has not referred to any material or reason whatsoever in Ext.P8 for reaching the finding that Shri V. K. KarunaT karan had not undergone imprisonment for more than 5 years.
10. After considering these aspects anxiously, we are of the view that the appellant is a person who would come within the purview of the Central Scheme. His application (Ext.P5) ought not have been rejected in such a manner as Ext.P8 order. We, therefore, quash Ext.P8 order. We declare that the appellant is a person entitled to the pension under the Central Scheme. We, therefore, direct the respondent to pass fresh orders on Ext.P5 application in the light of the findings made above within four months from the date of receipt of a copy of this judgment.
Writ appeal is disposed of in the above terms.