IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6445 of 2010(E)
1. SUJATHA, W/O.LATE C.K.PADMANABHAN,
... Petitioner
Vs
1. UNION OF INDIA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.K.K.SATHEESH
For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :07/06/2010
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 6445 of 2010
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Dated this, the 7th day of June, 2010.
J U D G M E N T
The petitioner is the widow of late C.K. Padmanabhan, who
belonged to a scheduled caste community and was a freedom fighter.
Her claim for pension under the Swathantrata Sainik Samman
Pension Scheme in respect of the sufferings of her husband did not
succeed. The petitioner approached this Court by filing W.P(C) No.
10518/2005. In that writ petition, a learned Judge of this Court
passed the following judgment:
“The writ petition is filed for the following among other
reliefs:
“i) declare that petitioner is entitled to get the
benefit of SSS Pension due to her late husband;
ii) issue a writ of mandamus or other appropriate
writ, direction or order compelling the 2nd respondent to
recommend the petitioner’s claim for the grant of SSS
Pension along with their verification-cum-entitlement to
pension report to the 1st respondent, and on receipt of the
same the 1st respondent may also be directed to grant the
benefit of dependent family pension under the SSS Pension
Scheme to the petitioner within a stipulated time;
iii) issue any other appropriate writ, direction or
order which this Hon’ble Court may deem fit and proper in
the nature and circumstances of the case.”
2. The case of the petitioner is that her deceased husband
was a freedom fighter who had active participation in the
Punnapra-Vayalar Movement during the freedom struggle. It is
averred that he had undergone the undertrial imprisonment in the
police station lock-up at Alappuzha for a period of one year, one
month and sixteen days and thereafter in the Central Prison,
Thiruvananthapuram for a period of three months and twenty
three days, till he was acquitted by the Additional Sessions Judge.
Ext.P2 is the true extract of the register of undertrial prisoners of
Central Prison, Thiruvananthapuram. Ext.P3 is the order granting
State Pension. Ext.P4 is the application submitted by the
petitioner for the grant of Swatantra Sainik Samman Pension (for
short SSS).
3. Ext.P6 order of the State Government is under challenge.
Two reasons are stated for not forwarding her application for the
grant of SSS pension. Her late husband Sri.Padmanabhan hadW.P.C. No. 6445/10 -: 2 :-
suffered imprisonment for a period of less than six months and his
undertrial sufferings did not end in conviction.
4. The learned counsel for the petitioner submitted that the
deceased Padmanabhan belongs to Scheduled Caste Community.
Ext.P10 is the certificate issued by the Tahsildar, Cherthala,
certifying that Padmanabhan belongs to Scheduled Caste
Community. Ext.P2 undertrial register also shows that the
deceased Padmanabhan is a Hindu-Velan, which is a Scheduled
Caste category. The learned counsel also refers to paragraph 4
(b) of the SSS Pension Scheme, 1980, which is extracted as
follows:
“(b) The minimum period of actual imprisonment for
eligibility of pension has been reduced to three months, in
case of women and SC/ST freedom fighters from 01.08.80.”
5. The question was directly answered by a Full Bench of
this Court in Union of India V. Peter Devassia [2003 (1) KLT
467]. This court held that the imprisonment for six months in jail
as undertrial prisoner can be counted for computing freedom
fighters pension. This Court also held that the trial need not end
in conviction. Sub Section b of Clause 4 of the Scheme read with
the decision of the Full Bench of this Court makes the matter very
clear. Therefore, there will be a direction to the State
Government to forward the application along with
recommendation of the State Government for the grant of SSS
Pension. The application with the recommendation shall be
forwarded within a period of one month from today and the 1st
respondent shall consider and pass appropriate orders within a
period of two months thereafter. In the event of sanction of
Pension, it is made clear that the applicant is entitled to arrears
from the date of filing of the application, i.e., 28.07.1998.
Writ Petition is disposed of as above.
Pursuant thereto, by Ext. P8, the respondent rejected the claim of the
petitioner as follows:
“5. After examination of the claim, it is found that Smt. Sujatha
is not eligible for grant of dependent family pension due to the
following shortcomings/discrepancies:
i. She has not furnished any Primary/Secondary evidence to
substantiate her claim (as described in para 4 above) of lock up
suffering. She has also claimed undertrial suffering for a period of
3 months and 23 days of her late husband in the Central Prison,W.P.C. No. 6445/10 -: 3 :-
Trivandrum. Copies of Extract of register of Under-Trial prisoners
of Central Prison, submitted by her have no been verified by the
State Government Order, hence cannot be relied upon.
ii. In absence of acceptable primary evidence, she is required
to furnish Secondary Evidence in the form of NARC from the State
Government along with CPC as prescribed in the Scheme.
However, she has not done so. The petitioner has not furnished
NARC from the State Government. The copy of certificate from
Superintendent, Sub-jail, Alappuzha provided by the petitioner
cannot be treated as valid NARC.
iii. Neither the extracts of register of Under Trial Prisoners nor
the certificate issued by Superintendent, Sub-Jail, Alappuzha shows
that the sufferings of the petitioner’s husband was in connection
with the Freedom Struggle.
iv. In the absence of valid NARC, the CPC submitted by the
petitioner cannot be considered. The CPC from Sh. P.A. Solomon
has, however, been scrutinized. The petitioner has not furnished
the jail records to establish the jail suffering of the certifier for a
period of at least 1 year. Thus the CPC is not acceptable as the
certifier has not furnished any record/evidence of his own jail
suffering of minimum one year (i.e., he has furnished no evidence
to establish that he is an eligible certifier). More over, the
certificate given by P.A. Solomon are not acceptable as he is
misusing his status of a freedom fighter and issuing the CPCs
indiscriminately.
v. The petitioner has submitted that she belongs to ST
Community. In her application dated 28.7.98, the petitioner has
mentioned “No’ against the column 14 asking ‘whether the
applicant is member of SC/ST community’. The petitioner/State
Government has not provided any certificate verifying her status as
ST. Now she is claiming to be ST. This creates sufficient doubts
regarding genuineness and bona fide of her claim. If the petitioner
does not furnish requisite certificate certifying hr claim as a
member of SC/ST, she will be treated as applicant from ‘General
Category’ and her claim is not covered under the relaxed category.
vi. The State Government has recommended the claim of the
petitioner. However, the recommendation is based on the grounds
which are otherwise not acceptable. As such the recommendation
of the State Government cannot be acceded to.
6. In view of the above, the claim of the petitioner does not
meet the eligibility criteria and evidentiary requirements of the
Swatantrata Sainik Samman Pension Scheme, 1980.
7. It is, therefore, regretted that it is not possible to accept her
W.P.C. No. 6445/10 -: 4 :-
claim for grant of dependent family pension under the Swatantrata
Sainik Samman Pension Scheme. Hence the same is, hereby,
rejected. The petitioner may be informed of the decision
accordingly. However, the Ministry is still ready to recosider the
claim of the petitioner if she furnishes the documents duly verified
by the State Government to remove the shortcomings mentioned
above.”The respondent in this writ petition was a respondent in the writ
petition which resulted in Ext. P6 judgment. The respondent did not
raise any of these objections before the learned Judge while the writ
petition was being heard. In that judgment, this court upheld the
right of the petitioner to get SSS pension, holding that her husband
belonged to a Scheduled Caste Community. That being so, the 1st
respondent cannot now dispute the claim as a member of a scheduled
caste. Moreover, what is relevant is the caste status of her husband
and not of the petitioner. The 1st respondent cannot raise new
objections when in the earlier judgment all these matters could have
been agitated and thrashed out, which they did not. Putting freedom
fighters and their widows through such agony again and again shows
lack of patriotism on the part of the officers who deal with the same.
They cannot take the stand that they will consider the matter on
merits only after the State Government first considers it, when they
had an opportunity to raise all these contentions before this Court
earlier. They must understand that persons like the petitioner, with
the limited resources they have, cannot afford the luxury of fighting
writ petitions time and again, in the twilight zone of their life. That
being so, I do not think that they could pass Ext. P8 order in violation
of Ext. P6 judgment. Ext. P8 is clearly in violation of Ext. P6
judgment.
Accordingly, Ext. P8 is quashed. The respondent is directed to
grant pension to the petitioner under the SSS Pension Scheme from
W.P.C. No. 6445/10 -: 5 :-
the date when the original application for pension was filed either by
the petitioner or by her husband. Arrears shall be paid within a
period of two months from the date of receipt of a copy of this
judgment.
Sd/- S. Siri Jagan, Judge.
Tds/