IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7187 of 2008(E)
1. P.A.MATHEW, AGED 85,
... Petitioner
Vs
1. THE UNION OF INDIA, REPRESENTED BY
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.J.OM PRAKASH
For Respondent :SRI.S.KRISHNAMOORTHY, CGC
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :30/08/2010
O R D E R
T.R. RAMACHANDRAN NAIR, J.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
W.P.(C). No.7187/2008-E
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 30th day of August, 2010
J U D G M E N T
In this writ petition, the challenge is against the
orders Exts.P14 and P15 which are the orders refusing
Swatantrata Sainik Samman Pension and the communication of
the State Government refusing to recommend the application
for pension respectively.
2. The second petitioner is the widow of late Shri
P.A.Mathew who had filed this writ petition and who died
during the pendency of the writ petition. It is averred in
the writ petition that late Shri P.A. Mathew was an active
participant of Punnapra-Vayalar Struggle and, hence, the
police arrayed him as an accused before the Special
Magistrate Court, Alappuzha in P.E.7/1122(M.E) and the
Court issued a non-bailable warrant against the first
petitioner and then in order to evade arrest, he had gone
underground for more than six months from October 1946 to
July 1947 and consequently was declared as a proclaimed
offender. Ext.P1 is the copy of the application for grant
of S.S.S. Pension. Ext.P2 is the copy of the order
granting pension under the Kerala Freedom Fighters’ Pension
Rules. It is pointed out that at present no official
documents are available in respect of P.E.7/1122 and Ext.P3
W.P.(C). No.7187/2008
-:2:-
is the copy of the copy application and the order in case
No.PE.7/1122. Therein, the C.J.M. Court, Alappuzha has
certified that the records of the year 1122 have already
been destroyed and, accordingly, the copy application was
rejected. This was also placed by the petitioner before
the Government.
3. The copy of the Personal Knowledge Certificate
produced by the petitioner from Shri Kunjan Sukumaran is
Ext.P4. Ext.P5 is the copy of the extract of the convict
register in respect of the said certifier and Ext.P6 is the
order granting S.S.S. Pension to him. On receipt of a
further direction by the District Collector to produce
other records, the petitioner produced the Personal
Knowledge Certificate of Shri Narayanan Ramankutty a copy
of which is available as Ext.P7 and, Ext.P8 is the copy of
the order granting Central Pension to the said certifier
and Ext.P9 is the true copy of the extract of the convict
register of the Central Prison, Thiruvananthapuram in
relation to the said certifier. The State Government again
did not recommend the application which is evident from
Ext.P10 communication of the District Collector which led
to the deceased freedom fighter filing W.P.(C).
No.1138/2006. During the pendency of the said writ
petition, the late husband of the second petitioner
W.P.(C). No.7187/2008
-:3:-
produced the Personal Knowledge Certificate issued by Shri
H.K.Chakrapani a copy of which is produced as Ext.P11.
Ext.P10 is a true copy of the order granting S.S.S Pension
to the said certifier and Ext.P13 is the true copy of the
convict register relating to Shri H.K.Chakrapani. In W.P.
(C).No.1138/2006, this Court directed the Government to
dispose of the matter again. Ext.P14 is the order passed
by the Central Government.
4. In Ext.P15, the State Government has chosen not to
recommend the application but to forward the pension
application along with the enclosures.
5. Heard the learned counsel for the petitioners and
the learned Government Pleader. The learned counsel for
the petitioner invited my attention to Ext.P15 to contend
that none of the relevant aspects have been considered by
the State Government. In paragraph (1) of Ext.P15, after
referring to the Personal Knowledge Certificates issued by
Shri Kunjan Sukumaran and Shri Narayanan Ramankutty and a
certificate from Shri P.K.Chandranandan Ex-MLA and N.A.R.C
from Chief Judicial Magistrate Court, Alappuzha it is
specifically mentioned that “the District Collector,
Alappuzha has reported that no case records related to the
case are available in the concerned Court, Police Station
and Collectorate also”. It is further mentioned that the
W.P.(C). No.7187/2008
-:4:-
first petitioner did not produce any additional documents.
The learned counsel for the petitioners submitted that the
deceased could not have produced any additional documents
as no records are available in any of the offices concerned
and, therefore, the view taken by the State Government
cannot be accepted also. I find force in the above
submission. When the District Collector reported that no
case records relating to the case are available in the
concerned court, Police Station and Collectorate, there is
no point in directing the petitioner to produce any
additional documents. Evidently, the period of the
struggle is between 1946 to 1947. The application is filed
only in 1998. Therefore, the late petitioner could not
have been expected to maintain contemporaneous records. He
could have produced the records only if available from the
Criminal Court, Police Station and the Collectorate.
Therefore, the adverse comment made in Ext.P15 on the
conduct of the late petitioner in not producing additional
documents cannot be accepted.
6. In Ext.P15, no reference is made to the Personal
Knowledge Certificate issued by Shri H.K.Chakrapani. But,
in the counter affidavit filed by the State Government, in
paragraph (5), it is stated that “the certifier Shri
H.K.Chakrapani was granted Swatantrata Sainik Samman
W.P.(C). No.7187/2008
-:5:-
Pension in 2003 by giving him the benefit of doubt. Hence,
the Personal Knowledge Certificate issued by him cannot be
relied upon”. The grant of S.S.S. Pension to the said
certifier is evident from Ext.P12. It is clear that the
various certificates produced by the said certifier were
examined by the Central Government and pension was granted.
Apart from that, this certifier is a well known freedom
fighter whose certificates have been produced by other
applicants also and this Court had occasion to consider the
adequacy of such certificates in various writ petitions and
at no point of time the State Government had a case that he
is not a competent certifier. Therefore, it is really
unfortunate as to how in paragraph (5) such a comment has
been made that his certificate cannot be relied upon. His
period of imprisonment, as evident from Ext.P13, is from
21/03/1952 to 27/01/1955, that means, nearly 3 years. The
qualification of the certifier is only that he should
undergo imprisonment for a minimum period of 2 years.
Really, he is a competent certifier. Apart from that, once
he was granted pension by the Central Government, the State
Government cannot sit in appeal on the same and comment
upon the qualification of the said certifier, that too
without any justification.
W.P.(C). No.7187/2008
-:6:-
7. Therefore, the attitude taken here is not
justifiable. Evidently, in Ext.P15, only the certificates
of other certifiers have been considered and they have also
been rejected, for want of supporting official documents.
When it is evident from the report of the District
Collector which is made mention in Ext.P15 that no
documents are available, those certificates could not have
been rejected for want of said official documents.
8. The learned Government Pleader pointed out that
normally N.A.R.C’s are produced from the concerned courts,
but the Central Government requires a proper certificate
issued by the State Government itself. Evidently, the said
stand cannot be accepted. In so many cases, even though
the Central Government has been taking such a stand, as far
as this State is concerned, the State Government has not
been issuing any certificates by way of NARC by any of the
Departments. Therefore, the parties can only produce the
certificate from the concerned jail, where the applicant
has undergone conviction or from the authorities of the
police or from the concerned courts, in other cases.
Therefore, it cannot be said that the NARC produced by the
first petitioner from the C.J.M. Court is in any way
defective for want of a further certificate from the State
Government. Herein, as rightly pointed out by the learned
W.P.(C). No.7187/2008
-:7:-
counsel for the petitioners, Ext.P15 evidences the fact
that the State Government has considered the report of the
District Collector wherein he has reported that no records
are available. Therefore, actually, Ext.P15 itself has
recorded the non-availability of records.
9. This Court in Judgment in W.P.(C).No.10843/2010
had occasion to consider the insistence of the certificate
in the following form:-
“All concerned authorities of the State
Government who could have relevant records
in respect of the claim of the applicant
have been consulted and it is confirmed that
the official records of the relevant time
are not available.”
The learned Single Judge was pleased to hold as follows:-
“I have held earlier in other similar cases
that no freedom fighter in this country can
furnish such an NARC. The petitioner has
already produced an NARC from the concerned
Magistrate Court where according to the
petitioner the case against the petitioner’s
husband during the freedom struggle was
registered pursuant to which he went
underground. I am of opinion that, the
W.P.(C). No.7187/2008
-:8:-petitioner cannot do anything else other
than producing such an NARC. Even otherwise
as far as the Government records are
concerned the Supreme Court and this Court
has again and again held that wherever
records in respect of freedom fighters are
to be obtained from the Government offices
it is the duty of the Government to get the
same. As such, I do not find any merit
whatsoever in the ground for rejection of
the NARC produced by the petitioner.
Therefore, I hold that, the NARC (Ext.P8)
produced by the petitioner is sufficient for
the purpose of claiming pension under the
Scheme.”
10. Herein also evidently, in the light of the report
of the District Collector made mention of in Ext.P15 the
State Government can issue another N.A.R.C., if it is
required. Ext.P15 suffers from serious infirmity,
especially, in the light of the fact that the Personal
Knowledge Certificate of Shri H.K.Chakrapani along with the
certificates of the certifier have not been examined.
Therefore, Ext.P15 and the order passed by the Central
Government-Ext.P14 are quashed. There will be a direction
W.P.(C). No.7187/2008
-:9:-
to the State Government to consider the Personal Knowledge
Certificates including the certificate issued by Shri
H.K.Chakrapani and forward a fresh Verification-cum-
Entitlement Report showing the recommendation to the
Central Government in the light of the above findings along
with proper NARC within a period of six weeks from the date
of receipt of a copy of this Judgment. Ext.P15 evidences
the fact that already the District Collector has reported
that no records are available with the concerned court,
Police Station and Collectorate and, therefore, the said
report can be utilised for issuing a fresh NARC. On
receipt of the Verification-cum-Entitlement Report from the
State Government along with other documents, the Central
Government will reconsider the application within a further
period of three months. In the event of grant of pension,
the entitlement of the second petitioner for pension 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.)
ms