Kerala High Court
Union Of India vs Subhadra on 30 June, 2015
Author: A.M.Shaffique
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937
WA.No. 2538 of 2015 IN WP(C).29317/2013
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AGAINST THE JUDGMENT IN WP(C) 29317/2013 of HIGH COURT OF KERALA
DATED 30-06-2015
APPELLANT/1ST RESPONDENT :
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UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS
FREEDOM FIGHTERS DIVISION, LOK NAYAK BHAVAN, NEW DELHI
PIN-110003.
BY ADV. SRI.S.KRISHNAMOORTHY, CGC
RESPONDENTS/PETITIONER/2ND & 3RD RESPONDENTS:
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1. SUBHADRA
W/O.KARUNAKARAN, MANALIKKATTIL HOUSE, ARAKULAM EAST
KODUNGALLUR, THRISSUR DISTRICT.
2. STATE OF KERALA
REPRESENTED BY SECRETARY
DEPARTMENT GENERAL ADMINISTRATION, FFP-A DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
3. THE DISTRICT COLLECTOR
THRISSUR 680003
BY SR.GOVERNMENT PLEADER SRI.P.I.DAVIS
BY SMT.P.R.REENA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2016,
THE COURT ON 11/03/2016 DELIVERED THE FOLLOWING:
ASHOK BHUSHAN, CJ "CR"
&
A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
W.A.No.2538 of 2015
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Dated this the 11th day of March 2016
J U D G M E N T
Shaffique,J This appeal is filed by the 1st respondent in the writ petition challenging judgment dated 30/06/2015 in WP(C) No. 29317/2013 by which the learned Single Judge allowed the writ petition quashing Ext.P6 and directing the appellant to grant freedom fighter's pension to the petitioner within a period of three months.
2. The short facts involved in the writ petition would disclose that the petitioner, being the wife of Sri.M.K.Karunakaran, applied for freedom fighter's pension under the Swathantrata Sainik Samman Pension Scheme on the ground that her husband late Sri.M.K.Karunakaran had participated in the freedom movement of the nation. According to the petitioner, her husband remained underground for six months and more and he was a proclaimed offender. Petitioner's husband earlier filed an application for pension and there was delay in processing the same. After his death, petitioner filed WP(C) No.36025/2004 W.A.No.2538/2015 2 before this Court. The learned Single Judge directed the Central Government to grant pension to the petitioner. In the appeal filed as W.A.No.1054/2012, the Division Bench allowed the appeal directing the petitioner to furnish necessary details and apply afresh.
3. Petitioner submitted a fresh application in the prescribed format, a copy of which is produced as Ext.P3. It was contended that her husband had participated in the Indian freedom struggle including the Quit India movement and arrest warrant was issued by the Judicial First Class Magistrate, Kodungallur in C.C.No.28/1121 M.E and he was evading the detention order. Petitioner also obtained a Non-Availability of Records Certificate (NARC) from the Judicial First Class Magistrate Court, Kodungalloor as the records relating to the order of arrest was not available. She also produced a certificate issued by a prominent freedom fighter Sri.P.A.Joseph who certified that her husband remained underground evading arrest for a continuous period from February 1942 to August 1947. Enquiry was conducted by the State Government and they reported that the petitioner fulfills the eligibility criteria for grant of pension. W.A.No.2538/2015 3 Ext.P5 dated 16/08/2013 is the report of the State Government. Central Government rejected her claim as per Ext.P6 order dated 14/10/2013. It is contended that the reasons stated were absolutely incorrect and her husband, being an eligible person, she is entitled for pension under the scheme.
4. Counter affidavit is filed by the 1st respondent inter alia stating that the petitioner failed to produce any documentary evidence in proof of her husband's claim and the only document produced is the personal knowledge certificate issued by Sri.P.A.Joseph. Petitioner's husband had applied earlier for pension which was rejected as per letter dated 02/03/2001. It is stated that the claim of the petitioner did not meet the evidentiary requirement and eligibility criteria of the pension scheme. It was rejected by order dated 14/10/2013. As far as the State Government report is concerned, it is stated that the certificate has been issued by Sri.P.A.Joseph, who actually suffered imprisonment for only seven days and since he is not an eligible certifier, his certificate cannot be relied upon for grant of pension.
W.A.No.2538/2015 4
5. The learned Single Judge, after considering the rival claims, came to the finding that the petitioner's husband fulfilled the conditions under Ext.P2 scheme for which a personal knowledge certificate along with non-availability records were produced. It is stated that when the scheme provides for furnishing NARC in the absence of original records and personal knowledge certificate to be issued by a freedom fighter who had been sentenced for two year's imprisonment, the premature release of Sri.P.A.Joseph due to amnesty cannot be a reason for denying pension and therefore Ext.P6 has been quashed and the impugned direction has been issued.
6. The learned counsel for the appellant relied upon the scheme to contend that as far as persons who claim to have remained underground is concerned, they have to satisfy the procedural aspects which are required to be furnished in terms of the scheme. If the documents are not clear, it is well within the jurisdiction of the Central Government to deny the benefit of the scheme. When the Central Government had rejected the claim for want of sufficient materials, as evident from Ext.P6, this Court should not have interfered with such finding of fact by taking a W.A.No.2538/2015 5 different view, which is not expected of a writ Court. It is contended that in so far as a claim by a person who remained underground is concerned, he should be a proclaimed offender or one on whom an award for arrest/head was announced or one whose detention order was issued but not served. The scheme also provides for the evidence that is required to prove the claims. As far as underground suffering is concerned, what is required is documentary evidence by way of Court's/Government Orders proclaiming the applicant as an offender announcing an award on his head or for his arrest or ordering his detention. It is argued that there is no such material in the present case. The scheme further indicates that, in the absence of such certificates from official records, NARC from the concerned authorities along with a certificate from a prominent freedom fighter who had undergone imprisonment for a period of atleast two years or more is to be produced. It is argued that the petitioner has not produced any of these records. Certificate from a prominent freedom fighter is produced, but he has not undergone imprisonment for a period of two years.
W.A.No.2538/2015 6
7. On the other hand, learned counsel appearing for respondent/writ petitioner, while supporting the judgment, submits that the NARC obtained from the Court and a certificate from the prominent freedom fighter, Sri.P.A.Joseph was sufficient proof to establish the claim. It is argued that the word 'undergone imprisonment for a period of two years or more' has to be understood in the light of the other provisions where the term used is "underground suffering of imprisonment for two years or more". It is argued that as far as spouse of a freedom fighter is concerned, it may not be possible to produce the exact documents and even in cases where similar certificates have been produced from prominent freedom fighters who had undergone imprisonment for a period more than two years, the Central Government had taken a view that such certificates cannot be relied upon as the persons in prison may not know as to whether the person, in whose favour the certificate is issued, was actually underground or not.
8. The learned counsel for appellant relied upon the judgment dated 08/08/12 in W.A.No.1054/2012 which was filed by the appellant against the judgment in WP(C) No.36025/2004 W.A.No.2538/2015 7 wherein the Division Bench, with reference to the very same writ petitioner, had set aside the judgment of the learned Single Judge and observed at paragraphs 6,7 and 8 as under:
"6. In the present case, no doubt, certificates of co-prisoners or other freedom fighters or personal knowledge certificate are sent along with the application by the freedom fighter which was pursued by his widow after his death in 2004. Unfortunately, none of these documents right from Exts.P5 to P9 would indicate that these certificates are in consonance with the requirement indicated in the Scheme of 1980 for sanctioning SSS pension. Some certificates indicate certifier was in imprisonment for less than one year and some certificates i.e. Personal Knowledge Certificate is issued by the prisoner indicates that underground suffering of the freedom fighter as six months which is disapproved by the Apex Court in the case of Mahender Singh v. Union of India [JT (2010) 10 SC 547] (paragraph 8).
7. In that view of the matter, the learned Judge ought to have looked into the details of the Scheme envisaged for the purpose of SSS Pension and then would have proceeded to direct the Central Government to sanction the pension. Mere sanction of State Pension will not entitle any applicant to get the Central Pension automatically. Unless and until the required terms and conditions envisaged in the W.A.No.2538/2015 8 Scheme are complied with, the State cannot recommend the case of the applicant and the Central Government cannot sanction pension.
8. In view of the above observations, we are compelled to set aside the judgment of the learned Single Judge in W.P.C.No.36025 of 2004 dated 14.10.2011. However, we reserve liberty to the writ petitioner/wife of the freedom fighter to furnish necessary material in case she is able to secure such information and forward the same to the State Government within three months. From the date of receipt of such information, the General Administration (FFP) Department shall verify the same and do the needful as envisaged in the Scheme within two months thereafter. After receiving the application and verification and entitlement to pension report forwarded by the General Administration (FFP) Department, the Central Government shall dispose of the application in the light of the fresh material supplied by the applicant untrammeled by the earlier rejection."
9. It is argued that when it was clearly held that the certificate issued by the certifier, who was in imprisonment for less than one year has been disapproved by the Apex Court in Mahender Singh v. Union of India [JT (2010) 10 SC 547], the learned Single Judge was not justified in relying upon a certificate W.A.No.2538/2015 9 issued by a freedom fighter who had suffered imprisonment only for seven days.
10. In Mahender Singh (supra), the Apex Court had occasion to consider the case where a person claimed that he remained underground for more than six months and he was made an accused in two cases. The question considered was whether the appellant remained underground for more than six months as a proclaimed offender. After referring to the relevant scheme, it was held that though the State Government recommended the case, the Central Government had rejected the same on the ground that the records and details produced were not sufficient. It is observed that the NARC did not indicate the date of disposal of the cases and the relevant provisions under the Indian Penal Code. Therefore, it is not clear as to whether the case related to any freedom struggle or not. In regard to personal knowledge certificate issued by one Jagadish Singh, the stand of the Central Government was that the certifier was in jail for most of the period during which the applicant claimed suffering underground. Therefore it was not possible for giving such a personal knowledge certificate. It was held that the W.A.No.2538/2015 10 recommendation of the State Government is not final or conclusive and once there is failure to establish a claim, the denial of pension was justified.
11. Learned counsel for the respondent placed reliance on the judgment of the learned Single Judge of this Court in Narayana Pillai.A.S v. State of Kerala [2009(3) KLT 351] wherein it was held at paragraph 13 as under:
"13. On an anxious consideration of the issue in the above context, taking note of the purpose and objectives of the scheme, and taking note of the guidelines and principles settled through various precedents of the Hon'ble Apex Court, I feel that the approach and interpretations in this regard should always be liberal. The object sought to be achieved in insisting that, certificate should be obtained from any veteran freedom fighter who had undergone imprisonment for a period of two years or more, is clear that such certifier should be a person who had really participated in the freedom struggle in an active manner and had suffered sentence of imprisonment for a considerable extent of time. Normally remission on the period in sentence of jailors are granted for various reasons. Such remissions or premature release will not in any way dilute the rigour or seriousness of the offence alleged or sentence W.A.No.2538/2015 11 imposed. Taken on that view of the issue, I hold that the requirement under clause 9(b)(ii) of the SSS Pension Scheme can be construed as it takes in freedom fighters who were sentenced for a period of two years or more on conviction in any case connected with freedom struggle, eventhough they had undergone imprisonment only for a lesser period due to remission of sentence allowed while undergoing such imprisonment.
12. Another judgment relied upon is Devaki.K v. Union of India [2010 (3) KHC 823]. That was a case in which a claim for pension was made by a widow of an INA soldier. There was no dispute regarding him being an INA Soldier. He produced two certificates from co-prisoners regarding his imprisonment at Changi jail for four months and Bangkok jail for three months. State of Kerala also recommended the grant of pension. The claim for pension was rejected on the ground that the certifiers had not undergone a minimum imprisonment for one year. This Court held at paragraph 16 as under:
"16. It is expected and required of the respondent to examine the averments contained in the writ petition and thereafter make responsible assertions of either affirming or denying them. But the W.A.No.2538/2015 12 respondent-Central Government cannot take the stand that the averments concern the petitioner and that the respondent would not make any comments on them. Besides such an approach is in sharp contrast to Article 51 A(b) of the Constitution of India which states that it shall be the duty of every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom."
I am inclined to follow those decisions to grant reliefs to the petitioner in this writ petition. I think that the situation should be read in the light of Article 51A(b) of the Constitution of India, wherein "to cherish and follow the noble ideals which inspired our national struggle for freedom" is prescribed as a fundamental duty of all citizens of India. I am of opinion that in view of the fact that the only objection against the grant of SSS Pension to the petitioner is a lack of one year's imprisonment for the certifiers, which is a very technical contention, the petitioner is entitled to succeed in this writ petition insofar as the petitioner has produced reliable other evidence also which probabilises the fact that her husband had undergone 7 months' jail suffering as an INA prisoner, which has also been found to be proved on enquiry by the State Government. It is therefore declared that the petitioner, as the widow of such a freedom fighter, is eligible for pension under the Swatantrata Sainik Samman Pension Scheme."
W.A.No.2538/2015 13
13. It is therefore argued by the learned counsel for the respondent that merely for the reason that the certifier had only seven day's imprisonment, there is no disqualification and a liberal approach has to be taken in the matter. But, it is relevant to note that when a scheme is made applicable, and pension is granted on the basis of the scheme, the terms of the scheme has to be applied by the competent authority for granting any benefit under the scheme. Failure to do so will result in arbitrariness. Court can interfere in such matters only if there is failure to comply with the terms of the scheme. In the case on hand, Ext.P6 is the order rejecting the claim for pension mainly on the ground that the certifier had not undergone two years imprisonment as stated in the scheme. In fact, the Division Bench of this Court in the case of the writ petitioner herself has come to such a conclusion based on Mahender Singh (supra). Under such circumstances, the learned Single Judge ought to have considered the issue in the light of the said judgment before proceeding further. The learned Single Judge however placed reliance on Narayana Pillai (supra). We do not think that the said judgment lays down the correct proposition. The relevant provision under W.A.No.2538/2015 14 the scheme which requires production of evidence reads as under :
"B. Documentary evidence by way of
Court's/Government Orders proclaiming the
applicant as an offender announcing an award on his head or for his arrest or ordering his detention. In the absence of such certificates from official records, a Non-Availability of records certificate from the concerned authorities along with a certificate from a prominent freedom fighter who had undergone imprisonment for a period of at least two years or more."
14. The words "a prominent freedom fighter who had undergone imprisonment for a period of atleast two years or more" cannot be given a different meaning. The word "undergone imprisonment" has to be given its plain meaning. There is no ambiguity. Even if a person is convicted for two years and more and later he was given a remission and he did not undergo the imprisonment for the entire period, it cannot be stated that he had undergone the imprisonment for the period for which he was convicted. The learned Single Judge in Narayana Pillai (supra) was referring to the object sought to be achieved W.A.No.2538/2015 15 while insisting for a certification from a veteran freedom fighter. The learned Single Judge held that what is required is that such certifier should be a person who had really participated in the freedom struggle in an active manner and had suffered sentence of imprisonment for a considerable extent of time and remissions or premature release will not in any way dilute the rigour or seriousness of the offence alleged or sentence imposed. It was therefore held that sentencing for a period of two years or more on conviction by itself would be enough, even though they had only undergone imprisonment for a lesser period. This opinion, according to us, is doing violence to the essential requirements under the scheme. When the scheme provides for a particular method of evaluation based on evidence especially in the absence of actual evidence, regarding proclamation of a person as an offender, the insistence on such procedural formalities cannot be diluted by the Court exercising power under Article 226 of the Constitution of India. Such exercise of power amounts to interference with the terms of the scheme and as a consequence, there will be instances where genuine freedom fighters may loose the benefit of pension and the people who had no role in the W.A.No.2538/2015 16 freedom struggle would be benefited. As far as Devaki's case (supra) is concerned, the same cannot be made applicable to the facts of the present case.
15. In the light of the above discussion, we are of the view that the learned Single Judge was not justified in directing the grant of pension to the petitioner.
Accordingly, we allow the writ appeal setting aside the judgment of the learned Single Judge and dismiss the writ petition.
(ASHOK BHUSHAN, CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE) jsr