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.
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W.P.(C) No.12538 of 2010-N
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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/