IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 165 of 2005(T)
1. SUHARAKUNJU, W/O.LATE MOHAMMED
... Petitioner
Vs
1. UNION OF INDIA, REP. BY THE SECRETARY
... Respondent
2. THE STATE OF KERALA, REP. BY THE
For Petitioner :SRI.N.DHARMADAN (SR.)
For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :16/11/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) No. 165 of 2005 T
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Dated this the 16th day of November, 2010
J U D G M E N T
Petitioner is the widow of late Sri. Mohammed
Aboobacker Labba. Late Sri.Labba was a freedom fighter who
actively participated in the freedom struggle in the erstwhile
Travancore State. Ext.P1 order shows that he was a recipient
of pension under the Kerala Freedom Fighters’ Pension
Scheme. Averments in the writ petition also show that
recognising him as a freedom fighter, the Government of India
awarded ‘Thamra Pathra’ to him.
2. During his life time, on 03-12-1973, Sri.Labba
submitted Ext.P2 application for the grant of pension payable
under the Swatantrata Sainik Samman Pension Scheme. The
application was kept pending and meanwhile, Sri.Labba
breathed his last on 11-09-1979. Petitioner, his wife, pursued
the matter by filing various representations, one of which is
Ext.P3. Eventually the claim made by Sri.Labba was rejected.
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That order of rejection was challenged before this Court in
O.P.No.28531/2000. That Original Petition was disposed of by
this Court as per Ext.P6 judgment. In Ext.P6 judgment, taking
note of the submission that Sri.Labba was convicted to
undergo imprisonment in connection with the freedom
struggle for a period of six months and that the certificate that
Sri.Labba had undergone actual imprisonment of only two
months alone did not disqualify him, and that the case dealt
with by this Court in W.A.1717/2000 was identical, this Court
held that the order rejecting the claim made by Sri.Labba was
unsustainable and directed that his claim shall be
reconsidered by the Government of Kerala, on a
representation to be filed by his wife in that behalf. Petitioner
states that accordingly she submitted Ext.P7 representation.
Pursuant to the directions of this Court in Ext.P6 judgment,
based on the representation filed, the claim of the petitioner
for pension was reconsidered and was rejected by Ext.P8
order passed by the third respondent. Based on Ext.P8, the
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Government of India passed Ext.P9, rejecting the claim of the
petitioner on the ground that there was no positive
recommendation of the State Government which, according to
the first respondent, is a mandatory requirement for
consideration of the claim for grant of pension. It is
challenging Exts.P8 and P9 and also for a direction to the
respondents to extend to the petitioner the benefit of SSSP
Scheme, this writ petition is filed.
3. The first respondent has filed a counter affidavit
contending mainly that in the absence of the mandatory
positive recommendation from the second respondent, they
are not in a position to grant the benefit of pension claimed by
the petitioner. In the counter affidavit filed by the second
respondent, the second respondent has accepted that the
petitioner is a beneficiary of the State Pension and that the
deceased was awarded ‘Thamra Pathra’. However, the
second respondent has stated that as per jail records, the
petitioner’s deceased husband had undergone imprisonment
W.P.(C) No.165/05
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only for about two months, during the period from 27-01-1118
ME to 22-03-1118 ME. It is, therefore, contended that since
the deceased did not undergo imprisonment for the minimum
specified six months period, they were not in a position to
recommend his case for pension under the Central Scheme. It
is on this ground, the second respondent seeks to justify
Ext.P8 order.
4. Learned senior counsel for the petitioner contended
that the petitioner’s deceased husband being a genuine
freedom fighter, ought not have been denied the benefit of
Central pension. According to the learned senior counsel,
although the deceased was convicted and sentenced to
imprisonment for a period of more than six months, he was
released prematurely by extending the benefit of an amnesty
scheme, which was not granted based on any apology
tendered by him. It is stated in such circumstances, applying
the principles laid down in the judgments in Pappu Kesavan
Vs. Union of India [1996 (2) KLT 1035], Bhaurao Dagdu
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Paralkar Vs. State of Maharashtra and others [AIR 2005 (3)
SC 3330] and Narayana Pillai Vs. State of Kerala [2009 (3)
KLT 351], the petitioner’s claim ought to have been accepted.
5. I heard the learned Government Pleader and the
learned Standing Counsel appearing for the first respondent
also, who reiterated their plea as contained in the counter
affidavits filed.
6. It is an admitted fact that the deceased husband of
the petitioner was recognised as a freedom fighter. He was
also granted pension under the State Scheme evidenced by
Ext.P1 order. It is also an admitted fact that recognising him
as a freedom fighter, the deceased was awarded ‘Thamra
Pathra’. It is also undisputed fact that during the period from
27-01-1118 ME to 22-03-1118 ME, the deceased had
undergone imprisonment in connection with the freedom
struggle. Question is, despite the aforesaid facts, whether the
claim of the petitioner for pension under the Central Scheme
should have been negatived by the respondents. As already
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seen, it is the specific case of the petitioner that the deceased
was convicted and sentenced to undergo imprisonment for
more than six months. Although it is a fact that the petitioner
has not produced documents evidencing that the conviction
was for the period as claimed or to substantiate her plea that
the deceased was released from imprisonment on account of
an Amnesty scheme then implemented, Ext.P4 certificate
issued by the Superintendent of the Central Prison,
Thiruvananthapuram dated 05-07-2000 shows that though a
certificate was issued to the petitioner’s husband, certifying
the imprisonment he had undergone, the Superintendent is
presently not in a position to issue any certificate for the
reason that the convict register for the relevant period has
been received irrecoverably and, therefore, the genuineness
of the documents cannot be verified. Therefore, it is a case
where it is practically impossible for the petitioner to secure a
fresh certificate from the jail authorities.
7. It is also the specific case of the petitioner that a
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person who had undergone along with the deceased and who
was released along with him has already been granted
Freedom Fighters’ Pension, pursuant to the judgment of this
Court in O.P.No.7068/1999 filed by the aforesaid person, viz.,
Sri.R.Sankar Warrier. It is seen from the aforesaid judgment
that the Union of India had filed W.A.No.1717/2000 which was
dismissed by the Division Bench of this Court as per Ext.P10
judgment rendered on 26-09-2000. In that judgment, dealing
with facts, which are identical in nature, this Court has held as
follows:-
” The Swatanthrata Sainik Samman Scheme
for pension is promulgated with the intention
of benefiting those who bonafidly participated
in the freedom struggle. It was not in the
expectation of those person that pension will
be paid to them as they took part in the
struggle. They took part in the freedom
struggle on their own volition. They were
imprisoned and they were behind the bars.
The scheme directs that persons should have
undergone imprisonment for 6 months. But as
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per the scheme those who were released
prematurely will be also be entitled to
pension provided the release was not on the
basis of apology. The respondent has clearly
stated that he was not released on the basis of
apology. From Ext.P7 it is clear that the
records are not available. In the light of the
above facts, we uphold the judgment of the
learned single judge. Two months time is
granted from today to comply with the
direction to pay pension to the petitioner in
the OP.”
8. Therefore, if a person who had undergone
imprisonment along with the petitioner’s husband and
released along with him has been extended pension pursuant
to the directions in Ext.P10 judgment, I see no reason why a
different treatment should have adopted by the respondents in
the case of the deceased husband of the petitioner alone.
Further this Court also held non availability of the certificate
shall not be a ground to deny the benefit.
9. As rightly pointed out by the learned senior counsel
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for the petitioner, in various judgments including Pappu
Kesavan Vs. Union of India [1996 (2) KLT 1035], Bhaurao
Dagdu Paralkar Vs. State of Maharashtra and others [AIR
2005 (3) SC 3330] and Narayana Pillai Vs. State of Kerala
[2009 (3) KLT 351], this Court and Apex Court has repeatedly
highlighted the approach to be adopted in a case of this
nature. It has been held that the freedom fighters should be
treated with reverence and that genuine claims should be
liberally considered. In my view, these principles are fully
applicable in the case of the claim made by the petitioner and
therefore, in the light of the material available, I am satisfied
that the claim made by the petitioner deserves acceptance.
10. Reference was also invited to the judgment of this
Court in OP.No.10501/1997 where a learned Judge of this
Court had upheld a claim for pension relying mainly on the
`Thamra Pathra’ awarded to the claimant therein. Here also,
the deceased husband of the petitioner has been awarded
`Thamra Pathra’.
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11. Thus, on an over all consideration of the matter, I
feel that the reasoning of the second respondent in Ext.P8
order, rejecting the application on the ground that the
petitioner’s deceased husband had undergone imprisonment
only for two months and that his release was not on an
apology is too technical to be upheld by this Court. I,
therefore, quash Ext.P8 and consequently, Ext.P9 issued by
the first respondent is also set aside.
12. There will be a declaration that the petitioner’s
deceased husband is entitled to get pension under the SSSP
Scheme of the first respondent. It is directed that the first
respondent shall disburse the benefits due under the scheme
to the petitioner within two months of receipt of a copy of this
judgment.
Writ petition is disposed of as above.
Sd/-
(ANTONY DOMINIC, JUDGE)
aks
// True Copy //
P.A. To Judge