High Court Kerala High Court

Bhargavi vs The Union Of India on 15 November, 2010

Kerala High Court
Bhargavi vs The Union Of India on 15 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 12538 of 2010(N)


1. BHARGAVI, W/O.VELU MADHAVAN, AGED 81
                      ...  Petitioner

                        Vs



1. THE UNION OF INDIA, REPRESENTED BY ITS
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTD BY THE

                For Petitioner  :SRI.J.OM PRAKASH

                For Respondent  :SHRI.GEORGE ZACHARIA, CGC

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :15/11/2010

 O R D E R
                     T.R. Ramachandran Nair, J.
                  - - - - - - - - - - - - - - - - - - - - - - - -
                    W.P.(C) No.12538 of 2010-N
                  - - - - -- - - - - - - - - - - - - - - - - - - - -
             Dated this the 15th day of November, 2010.

                                JUDGMENT

The petitioner who is the widow of late Shri Velu Madhavan, is

aggrieved by Ext.P12 order whereby the Central Government rejected the

application for SSS pension. Mainly it was rejected for the reason that the

jail certificate issued by the Superintendent, Central Prison,

Thiruvananthapuram establishes jail suffering of only 4 months and 26

days.

2. The petitioner’s late husband was actively involved in the

Punnapra-Vayalar struggle and an arrest warrant was issued against him by

the Court pursuant to which, he went underground for six months. Later he

was arrested by the Police and the First Class Magistrate Court, Cherthala

tried the case as C.C. No.8/124 M.E. and he was convicted and sentenced

for six months imprisonment. It is also submitted that during the trial, her

husband was in Sub Jail, Alappuzha for three months and after conviction

he was imprisoned in the Central Jail, Thiruvananthapuram.

3. Ext.P1 is the true copy of the application dated 9.3.1998 and

Ext.P2 is the true copy of the order of the District Collector sanctioning

wpc 12538/20010 2

State pension. Ext.P3 is the copy of the report of the Tahsildar

recommending sanction for State pension. It shows that the applicant is a

participant of Punnapra-Vayalar struggle and had undergone imprisonment

for a total period of eight months. Earlier, the application was not

recommended and the late husband of the petitioner filed Ext.P5 review

petition before the State Government. Ext.P6 certificate was also produced

in support of the same, which shows the details of the case, conviction, etc.

Exts.P8 and P9 are the true copies of the NARC issued from the Sub Jail,

Alappuzha and the First Class Magistrate Court, Cherthala. By Ext.P10, the

Central Government rejected the grant of pension which was under

challenge in W.P.(C) NO.25817/2006. The said writ petition was disposed

of by Ext.P11 judgment. He died during the pendency of the said writ

petition. Thereafter, again the matter was considered and Ext.P12 order

has been passed.

4. Heard learned counsel for the petitioner, learned Govt. Pleader

and learned Central Govt. Standing Council.

5. Learned counsel for the petitioner submitted that the period of

sentence was actually for six months which will be evident from the files

maintained by the Collect orate, Alappuzha in connection with the sanction

of State pension. The relevant files have been produced before this Court

wpc 12538/20010 3

by the learned Govt. Pleader.

6. The file contains the true extract of the convict register of the

Central Prison, Thiruvananthapuram in respect of the husband of the

petitioner. The details of the same show that he was convicted in C.C.

No.8/124 M.E. of the First Class Magistrate Court, Cherthala and the

period of sentence as six months S.I. The date of sentence was 9th Dhanu,

1124 and expiry of sentence was 8th Midhunam, 1124. He was released on

8.11.1124 on expiry of the sentence. For easy reference, the contents of the

convict register are extracted below:

“TRUE EXTRACT OF THE CONVICT REGISTER OF CENTRAL
PRISON, TRIVANDRUM.

       1. Convict No.                  6
       2. Name with father's or
         Husband's name                Velu Madhavan
       3. Date of admission into
         the jail                      12th Makaram 1124
       4. Whether admitted by directed
         committal or by transfer
       5. If by transfer from what jail
         and S.No. in that jail Register
       6. Sex and whether married
         or single etc.                Male - Single
       7. Race, Religion and caste     Hindu Ezhava
       8. Previous occupation          Cooly

9. Residence:Town or village Paracheril veedu, Charamangalam
Taluk and District Thanneermukkam Thekkumbhagam,
Cherthala.

       10.State of education etc.      Malayalam
       11.Age on admission             32   5" - 5"

12.Description and marks 1) A mole 1 1/2″ below the left

wpc 12538/20010 4

of identification mandible

2) A mole 1″ below the left nipple

13.Class whether habitual
or casual

14.Offence for which S.9(5) r/w/ Sec.9(1)a of Act I of 22
imprisonment

15.Calander No. of case and C.C.No.8/124 Wrt No.21 dt.9.6.124
Ist Class Magistrate, Cherthala

16.Sentence 6 (Six) months S.I.

17.Date of of sentence 9th Dhanu 1124

18.Date of expiry of sentence 8th Midhunam

19.Result of appeal (if any)

20.Date of receipt of fine or
intimation of payment of fine

21.Weight

22.Health

23.Disposal with date Released on 8.11.1124 on expiry of
sentence

24.Date of return of warrant 8.11.1124
to Court
/true extract/
sd/-

Superintendent
T/6/21-8-72 (100) Central Prison, Trivandrum.”

The particulars of the above extract will show that he was sentenced for a

period of six months and was released on 8.11.1124 on expiry of the

sentence.

7. Learned counsel for the petitioner submitted that the respondents

are treating the period of conviction and sentence as one below six months,

for the reason that the date of admission into the jail as 12th Makaram,

1124. It is pointed out that column 23 which gives the date of release as

wpc 12538/20010 5

8.11.1124 will show that such a release was not a premature one but was

after the expiry of sentence. There was no remission for him also.

Therefore, it is pointed out that even though the date of admission is 12th

Makaram, 1124 (12.6.1124), since the release was after the expiry of

sentence, it will be evident that he was in custody from the date of

conviction at least, even though during trial also he as in custody. It is

therefore submitted that the view taken by the respondents cannot be

supported.

8. Plainly, in Ext.P12 the main reason shown is that the primary

evidence, viz. the certificate issued by the Superintendent, Central Prison,

Thiruvananthapuram establishes jail suffering of only 4 months and 26

days. Going by para 3 of the counter affidavit, the minimum imprisonment

required is of six months. Ext.P6 certificate only gives the date of

admission and the date of release. But if the details of the extract of

convict register, as noticed above, are analysed, it can be seen that the

learned counsel for the petitioner is right in submitting that the late husband

of the petitioner had suffered sentence of six months.

9. Evidently, the date of sentence is 9th Dhanu, 1124 (corresponding

to 9.5.1124) and the release was on 8.11.1124. Hence, the six months

period is satisfied. The period cannot be calculated from 12.6.1124, viz.

wpc 12538/20010 6

the date of admission since it can be evidently seen that the release was not

a premature one. It is recorded in column 23 of the convict register that his

release was on expiry of sentence. In that view of the matter, it can be

safely concluded that the late freedom fighter was released only after the

expiry of sentence of six months. The sentence was for a period of six

months as evident from column 16. Hence, it is evident that he was in

custody prior to the date of admission into jail.

10. That he is a participant in Punnapra-Vayalar struggle, is evident

from Ext.P3 report of the Tahsildar also. In the judgment Ext.P11 also,

these aspects have been mentioned by this Court.

11. Learned counsel for the respondents submitted that the rejection

of the claim is proper in the light of the evidence produced along with the

application and the recommendation of the State Government. It is pointed

out that the recommendation of the State Government was not elaborate

also.

12. In the light of the clinching evidence by way of true extract of

the convict register of the Central Prison, Thiruvananthapuram, the matter

need not be relegated back to the authorities concerned, especially since the

original files leading to the order Ext.P2 have been produced before this

Court by the learned Govt. Pleader. The true extract of the convict register

wpc 12538/20010 7

is one signed by the Superintendent, Central Prison, Thiruvananthapuram on

21.8.1972.

13. Therefore, Ext.P12 is quashed. It is clear that in the light of the

primary evidence, the applicant is eligible for grant of SSS pension. There

will be a direction to the Central Government to sanction pension and grant

the benefits within a period of two months from the date of receipt of a copy

of this judgment. The entitlement of the petitioner for arrears from the date

of receipt of the application, will also be considered.

The writ petition is disposed of as above. No costs.

(T.R. Ramachandran Nair, Judge.)

kav/